[Federal Register Volume 81, Number 28 (Thursday, February 11, 2016)]
[Rules and Regulations]
[Pages 7413-7440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02680]
[[Page 7413]]
Vol. 81
Thursday,
No. 28
February 11, 2016
Part II
Department of the Interior
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Fish and Wildlife Service
Department of Commerce
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National Marine Fisheries Service
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50 CFR Part 424
Listing Endangered and Threatened Species and Designating Critical
Habitat; Implementing Changes to the Regulations for Designating
Critical Habitat; Final Rule
Federal Register / Vol. 81 , No. 28 / Thursday, February 11, 2016 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Marine Fisheries Service
50 CFR Part 424
[Docket No. FWS-HQ-ES-2012-0096; Docket No. 120106025-5640-03;
4500030114]
RIN 1018-AX86; 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, Commerce.
ACTION: Final 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''), amend portions of our regulations that
implement the Endangered Species Act of 1973, as amended (Act). The
revised regulations clarify, interpret, and implement 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, the amendments
make minor edits to the scope and purpose, add and remove some
definitions, and clarify the criteria and procedures for designating
critical habitat. These amendments are based on the Services' review of
the regulations and are intended to clarify expectations regarding
critical habitat and provide for a more predictable and transparent
critical habitat designation process. Finally, the 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: Effective date: This rule is effective March 14, 2016.
Applicability date: This rule applies to rules for which a proposed
rule was published after March 14, 2016.
ADDRESSES: Public input and a list of references cited for this final
rule are available on the Internet at http://www.regulations.gov.
Supporting documentation used in the preparation of this rule will be
available for public inspection, by appointment, during normal business
hours at: U.S. Fish and Wildlife Service, Division of Conservation and
Classification, 5275 Leesburg Pike; Falls Church, VA 22041-0041,
telephone 703/358-2171; facsimile 703/358-1735 and National Marine
Fisheries Service, Office of Protected Resources, 1315 East-West
Highway, Silver Spring, MD 20910, telephone 301-713-1401; facsimile
301-713-0376.
FOR FURTHER INFORMATION CONTACT: Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041, 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: This document is one of three listed below,
of which two are final rules and one is a final policy:
A final rule that amends the regulations governing section
7 consultation under the Endangered Species Act to revise the
definition of ``destruction or adverse modification'' of critical
habitat. The previous regulatory definition had been invalidated by
several courts for being inconsistent with the language of the Act.
That final rule amends title 50 of the Code of Federal Regulations
(CFR) at part 402. The Regulation Identifier Numbers (RINs) are 1018-
AX88 and 0648-BB80, and the final rule may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.
A final rule that amends the regulations governing the
designation of critical habitat under section 4 of the Act. A number of
factors, including litigation and the Services' experiences over the
years in interpreting and applying the statutory definition of
``critical habitat,'' highlighted the need to clarify or revise the
regulations. This final rule (this document) amends 50 CFR part 424. It
is published under RINs 1018-AX86 and 0648-BB79 and may be found on
http://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096 or at
Docket No. NOAA-NMFS-2014-0093.
A final 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
final policy complements the revised regulations at 50 CFR part 424 and
clarifies expectations regarding critical habitat, and provides for a
more predictable and transparent exclusion process. The policy is
published under RIN 1018-AX87 and 0648-BB82 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
to further 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 species 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 species status. 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
essential to the species' recovery. Once critical habitat is
designated, it can contribute to 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 a form of early conservation planning guidance (e.g.,
identifying some of the areas that are needed for recovery, the
physical and
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biological features needed for the species' life history, and special
management considerations or protections) to bridge the gap until the
Services can complete recovery planning.
In addition to serving as an educational tool, the designation of
critical habitat also provides a significant regulatory protection--the
requirement that Federal agencies ensure, in consultation with the
Services under section 7(a)(2) of the Act, 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
myriad 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 is 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 plant's ``presence'' is
sometimes limited to a seed bank), or protection of unoccupied habitat
is 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 Fisheries.
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 continued 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 final
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 a result of 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 final
rule.
Summary of Comments and Recommendations
In the proposed rule published on May 12, 2014 (79 FR 27066), we
requested that all interested parties submit written comments on the
proposal by July 11, 2014. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties, and invited them to comment on the proposal. We did
not receive any requests for a public hearing. We did receive several
requests for an extension of the public comment period, and on June 26,
2014 (79 FR 36284), we extended the public comment period to October 9,
2014. All substantive information provided during the comment periods
has either been incorporated directly into this final determination or
addressed in the more specific response to comments below.
General Issues
(1) Comment: Several commenters, including several States, provided
edits to the proposed regulation.
Our Response: We have reviewed the edits provided and, where
appropriate, we have incorporated them into this final regulation. The
more specific comments and edits are addressed below.
(2) Comment: Several comments stated that the proposed changes to
the regulation would vastly expand the area of critical habitat
designation, in direct conflict with using the critical habitat
designation as a conservation tool.
Our Response: The proposed changes to the regulation are not likely
to vastly expand the areas included in any particular critical habitat
designation. Many commenters focused on the inclusion of unoccupied
areas or perception that the proposed changes expand the Services'
authority to include such areas in a critical habitat designation.
Section 3(5)(A) of the Act expressly allows for the consideration and
inclusion of unoccupied habitat in a critical habitat designation if
such habitat is determined to be essential for the conservation of the
species. However, the existing implementing regulations state that such
unoccupied habitat can be considered only if a determination is made
that the Service(s) cannot recover the species with the inclusion of
only the ``geographical area presently occupied'' by the species, which
is generally understood to refer to habitat occupied at the time of
listing (50 CFR 424.12(e)). As discussed in the proposed rule, we have
determined that the provision is an unnecessary and redundant
limitation on the use of an important conservation tool. Further, we
have learned from years of implementing the critical habitat provisions
of the Act that a rigid step-wise approach, i.e., first designating all
occupied areas that meet the definition of ``critical habitat''
(assuming that no unoccupied habitat is designated) and then, only if
that is not enough, designating essential unoccupied habitat may not be
the best conservation strategy for the species and in some
circumstances may result in a designation that is geographically
larger, but less effective as a conservation tool. Our proposed change
will allow us to consider the inclusion of occupied and unoccupied
areas in a critical habitat designation following any general
conservation strategy that has been developed for the species. In some
cases (e.g., wide ranging species like the spotted owl or lynx), we
have found and expect that we will continue to find that the inclusion
of all occupied habitat in a designation does not support the best
conservation strategy for a species. We expect that the concurrent
evaluation of occupied and unoccupied areas for a
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critical habitat designation will allow us to develop more precise and
deliberate designations that can serve as more effective conservation
tools, focusing conservation resources where needed and minimizing
unnecessary regulatory burdens.
(3) Comment: Several commenters including one State noted that
recovery planning and critical habitat designation are two different
processes. A commenter also asked how the Services will ``infer'' that
unoccupied areas will eventually become necessary for recovery given
that recovery plans do not exist at the time of listing and when it is
not appropriate to designate unoccupied areas that are essential for
recovery.
Our Response: While we agree that the designation of critical
habitat and the recovery planning processes are different and guided by
two separate provisions of the Act and implementing regulations, the
ultimate goal of developing effective conservation tools and measures
to recover a listed species is the same. A general draft conservation
strategy or criterion that informs the construction of a critical
habitat designation is often developed in consultation with staff
working in recovery planning and implementation to ensure
collaboration, consistency, and efficiency as the Services work with
the public and partners to recover a listed species.
We have replaced the word ``infer'' with the word ``determine'' in
our preambular discussion to be clearer. We will determine from the
record and based on any existing conservation strategy for the species
if any unoccupied areas are likely to become necessary to support the
species' recovery. In order to designate unoccupied areas, we are
required by section 3(5)(A) of the Act to determine that such areas are
essential for the conservation of the species.
(4) Comment: Several commenters stated that this attempt by the
Services to expand their own discretion and authority without
congressional authorization is neither justified nor lawful.
Our Response: The amended regulations do not expand the Services'
discretion. Rather, they clarify the existing process by which we
designate critical habitat based on lessons learned over many years of
implementing critical habitat and relevant case law. The amendments
synchronize the language in the implementing regulations with that in
the Act to minimize confusion, and clarify the discretion and authority
that Congress provided to the Secretaries under the Act. The Services
are exercising their discretion to resolve ambiguities and fill gaps in
the statutory language, and the amended regulations are a permissible
interpretation of the statute.
(5) Comment: Several commenters were concerned that the changes
would lead to extensive litigation because the Services failed to
establish clear, measurable, and enforceable criteria for what should
or should not be considered ``habitat'' for a given species, let alone
whether an area should or should not be considered critical habitat
under the Act.
Our Response: The amended regulations do not substantially change
the manner in which critical habitat is designated. Rather, the
amendments primarily clarify how the Services already have been
developing critical habitat designations. We have set forth criteria in
the final rule below. We will also refine, to the extent practicable,
and articulate the specific criteria used for identifying which
features and areas are essential to the conservation of a species and
the subsequent development of a critical habitat designation for each
species (using the best scientific data available) in the proposed and
final critical habitat rules. Our intent is to be more transparent
about how we define the criteria and any generalized conservation
strategy that may have been used in the development of a critical
habitat designation to provide for a more predictable and transparent
critical habitat designation process.
(6) Comment: Several commenters stated that the Services have
misled stakeholders and effectively failed to provide adequate notice
and opportunity for public comment. The comments assert that we should
withdraw our proposal, republish it with a more accurate and clear
summary of the changes to the regulations and their implications, and
provide further opportunity for public comment.
Our Response: The Services have not misled stakeholders. We
initially provided a 60-day public comment period on the proposed
rule.In response to public comments requesting an extension, we
extended the comment period for an additional 90 days. This followed
extensive coordination and discussion with potentially affected Federal
agencies, States, and stakeholders and partners, as well as formal
interagency review under Executive Order 12866. We also held subsequent
calls and extensive webinars with many stakeholders to further inform
them about the proposed rule and address any questions or concerns they
may have had at the time. This satisfies the Services obligation to
provide notice and comment under the Act and the Administrative
Procedure Act (APA).
(7) Comment: Several tribes commented that traditional ecological
knowledge should constitute the best scientific data available and be
used by the Services.
Our Response: Traditional ecological knowledge (TEK) is important
and useful information that can inform us as to the status of a
species, historical and current trends, and threats that may be acting
on it or its habitat. The Services have often used TEK to inform
decisions under the Act regarding listings, critical habitat, and
recovery. The Act requires that we use the best scientific and
commercial data available to inform decisions to list a species and the
best scientific data available to inform designation of critical
habitat, and in some cases TEK may be the best data available. The
Services cannot determine, as a general rule, that TEK will be the best
available data in every rulemaking. However, we will consider TEK along
with other available data, weighing all data appropriately in the
decision process. We will explain the sources of data, the weight given
to various types of data, and how data are used to inform our decision.
Further, any data, including TEK, used by the Services to support a
listing determination or in the development of a critical habitat
designation may be subject to disclosure under the Freedom of
Information Act (FOIA).
(8) Comment: One State strongly advised the Services to withdraw
the Federal Register notice and form a Policy Advisory group on the
issue. The Western Governors' Association requested that the rule be
reworked in cooperation with Western States and utilize State data to
reach a more legally defensible result and to foster partnerships.
Our Response: We appreciate the interest by the State and Western
Governors' Association to form a policy advisory group and work
collaboratively with the Services. However, the Services have already
coordinated with States, Federal agencies, and partners to develop the
amended regulations, and do not agree that a Policy Advisory group is
necessary. The Services have relied on input from States and other
entities, as well as lessons we have learned from implementing the
provisions for critical habitat under the Act, to make the regulations
consistent with the statute, codify our existing practices, and provide
greater clarity and flexibility to designate critical habitat so that
it can be a more effective conservation tool. We will continue
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working collaboratively with Federal, State, and private partners to
ensure that our critical habitat designations are based on the best
available scientific information and balance the conservation needs of
the species with the considerations permitted under section 4(b)(2).
Scope and Purpose (Section 424.01)
(9) Comment: Several commenters including several States suggested
that we retain the words ``where appropriate'' to qualify the reference
to designation or revision of critical habitat as it is a phrase of
limiting potential. Some commenters suggested that we replace the words
with ``unless deemed imprudent'' to better clarify the intention of
this proposed change.
Our Response: As discussed in our proposal, the phrase ``where
appropriate'' was misleading and implied a greater flexibility than the
Services have regarding whether to designate critical habitat. The
Services have the discretion not to designate critical habitat only for
species listed prior to 1978 for which critical habitat has not
previously been designated or where an explicit determination is made
that designation is not prudent. Based on our experiences with
designating critical habitat, a determination that critical habitat is
not prudent is rare. Removing the phrase ``where appropriate'' still
allows the Services to determine that critical habitat is not prudent
for a species if such determination is supported by the best available
scientific information. Replacing it with the phrase ``unless deemed
imprudent'' implies that not prudent determinations are common, which
is not our intent. Deleting ``where appropriate'' provides the
necessary clarification concerning the discretion the Services have in
determining when to designate critical habitat.
(10) Comment: Several commenters suggested that we add the words
``at the appropriate time'' in place of the words ``where appropriate''
to qualify the reference to designation or revision of critical habitat
in Sec. 424.01(a).
Our Response: The Services are required under section 4(a)(3)(A) of
the Act to designate critical habitat, to the maximum extent prudent
and determinable, at the time a species is listed. The inclusion of the
phrase ``at the appropriate time'' and the implication that the
Services have flexibility regarding the timing of the designation
process runs counter to the statutory text.
Definitions
(11) Comment: Several commenters including one State asked us to
keep the definitions for ``critical habitat,'' ``endangered species,''
``plant,'' ``Secretary,'' ``State Agency,'' and ``threatened species''
in the regulation for the purpose of transparency and clarity because
they are core definitions in the authorizing statute and are important
terms in the regulations.
Our Response: These terms are defined in the Act itself, thus
repeating them verbatim in the implementing regulations is redundant
and does not resolve any ambiguity.
(12) Comment: Several commenters were concerned that the addition
of the phrase ``i.e., the species is recovered'' to the definition of
``conserve, conserving, and conservation'' to explain the point at
which the measures provided under the Act are no longer necessary
resulted in a higher standard for conservation than is warranted.
Others commented that the Services are implying that conservation of
critical habitat is equated to meeting recovery goals.
Our Response: The use of ``recovered'' in the definition of
``conserve, conserving, and conservation'' does not introduce a new
standard for conservation. Rather, it clarifies the existing link
between conservation and recovery. Conservation is the use of all
methods and procedures that are necessary to bring any species to the
point at which measures provided by the Act are no longer necessary.
Recovery is improvement in the status of listed species to the point at
which listing is no longer appropriate. Also see our response to
comment 2.
(13) Comment: One commenter stated that if the ``i.e., the species
is recovered'' is added to the definition of ``conserve, conserving,
and conservation,'' then the Services should also add the phrase ``or
extinct'' since these examples describe when the action of conservation
(a set of methods and procedures) are not necessary anymore.
Our Response: ``Conserve, conserving, and conservation'' is defined
in the Act as to use and the use of all methods and procedures which
are necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this Act are no
longer necessary. Extinction does not meet this definition because
extinct species have not been brought to the point at which listing is
no longer necessary. Our regulations at Sec. 424.11(d) state that a
species may be delisted for one or more of the following reasons: (1)
Extinction; (2) Recovery; (3) Original data for classification in
error. Each of these is a separate category, and only recovered species
have reached the recovered state contemplated by the definition of
``conserve, conserving, and conservation.'' (See our response to
comment 12).
(14) Comment: Several commenters stated that proposing to define
``geographical area occupied by the species'' is an amendment to the
definition in the Act and is illegal.
Our Response: The Act does not define the phrase ``geographical
area occupied by the species.'' The Services may develop, clarify, and
revise regulations implementing the provisions of a statute, provided
that our interpretations do not conflict with or exceed the authority
provided by the statute. Since there has been considerable confusion as
to the specific area and scale the phrase refers to, we find that it is
important to provide a reasonable and practicable definition for this
phrase based on what we have learned over the many years of
implementing critical habitat under the Act. Providing this definition
will clarify how we designate critical habitat and which areas are
considered occupied at the time of listing.
(15) Comment: Several States commented that the definition of
``geographical area occupied by the species'' provides no objective
criteria, which will only lead to further confusion and more
litigation. One State requested that we abandon the definition. Several
States offered revised language.
Our Response: The Services are defining the term ``geographical
area occupied by the species'' because the phrase is found in the Act
but is not defined in the Act's regulations, and because there has been
considerable confusion over the proper interpretation of the phrase. We
have clearly stated and explained the definition in our proposal.
Further, we will specify the criteria used for identifying which
features and areas are essential to the conservation of a species and
the subsequent development of a critical habitat designation for each
species (using the best scientific data available) in the proposed and
final rules for a particular critical habitat designation. Our intent
is to be more clear and transparent about how we define the criteria
and any generalized conservation strategy that may have been used in
the development of a critical habitat designation to enhance its use as
a conservation tool.
(16) Comment: One State commented that ``regular or consistent
use'' is a hallmark of a finding of occupied habitat, and should be
required by the
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``geographical area occupied by the species'' definition, not excluded.
The State pointed to the decision in Arizona Cattle Growers' Ass'n v.
Salazar, 606 F.3d 1160 (9th Cir. 2010), in which the court upheld the
application of the Service's definition of occupied habitat for the
Mexican spotted owl as ``areas that the owl uses with sufficient
regularity that it is likely to be present during any reasonable span
of time.'' Another State similarly commented that the use of the term
``even if not used on a regular basis'' in the definition of
geographical area occupied by the species will now enable the Services
to designate critical habitat within areas infrequently used by a
species.
Our Response: We respectfully disagree with the commenter that the
definition of ``geographical area occupied by the species'' should be
limited to only those areas in which the use by the species is
``regular or consistent.'' As discussed at length in our proposal, we
find that the phrase ``geographical area occupied by the species''
should also include areas that the species uses on an infrequent basis
such as ephemeral or migratory habitat or habitat for a specific life-
history phase. We find that this more inclusive interpretation is
consistent with legislative history and Arizona Cattle Growers' Ass'n
v. Salazar, 606 F.3d 1160 (9th Cir. 2010), and congressional intent.
Additionally, based on our experience of implementing the provisions of
critical habitat for many years, we have found that there has been
considerable confusion and differing interpretations of this phrase.
Our intent through the definition provided in our proposal was to
provide greater clarity regarding how we interpret the phrase and the
general scale at which we define occupancy. We give examples in the
rule of areas such as migratory corridors, seasonal habitats, and
habitats used periodically (but not solely by vagrant individuals). We
will use the best scientific data available to determine if such areas
occur for a species. Each species' life cycle is different and the
details of such areas, if they exist, would be explained in the
proposed and final rules designating critical habitat for a particular
species. These areas would also have to meet the criteria for occupied
areas in the definition of critical habitat found in the Act.
(17) Comment: One commenter stated that the definition of
``geographical area occupied by the species'' fails to include
paragraph 3(5)(C) from the Act: ``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.''
Our Response: The regulatory definition is intended to clarify how
we interpret the phrase, not to repeat the language of the statute.
Further, paragraph 3(5)(C) in the Act, applies to the geographic area
that can be occupied by a species, as opposed to the geographic area
actually occupied by the species.
(18) Comment: Several commenters including several States stated
that the definition of ``geographical area occupied by the species''
provides unlimited discretion and authority to the Secretary to
determine the boundaries and size of the critical habitat area.
Our Response: While we agree that the Secretaries are afforded
significant discretion and authority to define and designate critical
habitat, we respectfully disagree with the commenter that the
discretion and authority is unlimited. First, critical habitat is to be
defined and designated based on the best scientific data available.
Second, we have learned from years of implementing the critical habitat
provisions of the Act that often a rigid step-wise approach, i.e.,
first designating all occupied areas that meet the definition of
``critical habitat'' (assuming that no unoccupied habitat is
designated) and then, only if that is not enough, designating essential
unoccupied habitat, may not be the best conservation strategy for the
species and in some circumstances may result in a designation that is
geographically larger, but less effective as a conservation tool. By
providing a definition of ``geographical areas occupied by the
species'' along with the other revisions and clarifications in our
proposal, we can be more precise and deliberate in the development of
our critical habitat designations following any general conservation
strategy that has been developed for the species. Lastly, we are still
bound by paragraph 3(5)(C) (see response to Comment 17 above).
(19) Comment: Several commenters asked, ``What standards will be in
place to substantiate that such areas are used as part of a species'
life cycle and not just an individual vagrant's life cycle'' in the
definition of ``geographical area occupied by the species.'' Several
States also commented that the vagrant animal exception in the rule is
vague and subject to varying interpretations because no definition of
``vagrant'' is provided.
Our Response: As stated in our proposed rule, vagrant individuals
are species who wander far from the known range of the species. We will
use the best scientific data available to determine whether an area is
used by a species for part of its life cycle versus an individual
vagrant's life cycle. The basis for our determination on this point
will be articulated in our proposed and final rules designating
critical habitat for a particular species and subject to public review
and comments, as well as peer review.
(20) Comment: Several commenters suggested that we add the word
``regularly'' to the sentence ``Such areas may include those areas used
regularly throughout all or part of the species' life cycle'' in the
definition of ``geographical area occupied by the species.''
Our Response: The suggested addition would conflict with the second
part of the sentence, in which we state ``even if not used on a regular
basis (e.g., migratory corridors, seasonal habitats, and habitats used
periodically, but not solely by vagrant individuals).'' If the best
scientific data available indicates that these areas are used
periodically during some portion of the listed species' life history,
then these areas should be considered in the development of a critical
habitat designation.
(21) Comment: Several commenters questioned what would happen to
the size, shape, and location of critical habitat areas that were
designated in areas that were not regularly used as conditions change
and travel corridors shift or breeding areas move.
Our Response: As discussed in our proposal and throughout this
final rule, critical habitat is to be based on the best scientific data
available, and to the maximum extent prudent and determinable
promulgated concurrent with the listing of a species. Often at the time
of listing when we are developing a designation of critical habitat for
a species, we may have only limited data concerning the distribution of
the species, its life-history requirements, and other factors that can
inform the identification of features or specific areas essential to
the conservation of the species. Such limited data may still be the
best scientific data available. The Services are required in a proposed
and final designation of critical habitat to clearly articulate what
data are being used and the criteria for defining the specific
essential features and areas. The Services must also allow for public
review and comments on the proposal to ensure public involvement in the
process and provide as much clarity and transparency as possible. The
designation of critical habitat results in a regulation in which the
boundaries of critical habitat for a species are defined. These
boundaries can be changed only
[[Page 7419]]
through rulemaking. Thus, if habitat changes following a designation,
such that those specific areas no longer meet the definition of
``critical habitat,'' the areas within the boundaries of critical
habitat are still critical habitat until such time as a revision to the
designation is promulgated. Any interested party may file a petition
with the Services to request revision of a critical habitat
designation.
(22) Comment: A number of commenters, including several States,
asserted that the proposed definition of ``geographical area occupied
by the species'' is so vague it could lead to huge areas of unoccupied
and potentially unsuitable habitat being designated as critical habitat
that would result in the public or the regulated community having no
consistency.
Our Response: The proposed definition would not lead to more
expansive critical habitat designations. We do not designate areas that
are occupied at the time of listing unless those areas have one or more
of the physical or biological features present that are essential to
the conservation of the species and may require special management
considerations or protection. Any unoccupied habitat at the time of
listing could only be designated critical habitat under section
3(5)(A)(ii) of the Act, which requires a determination by the Secretary
that such areas are essential for the conservation of the species.
Further, we will articulate the specific criteria used for identifying
which features and areas are essential to the conservation of a species
during the subsequent development of a critical habitat designation for
each species (using the best scientific data available) in the proposed
and final rules designating critical habitat for that species. Our
intent is to be more clear and transparent about how we define the
criteria for designation and how in the development of a critical
habitat designation we use any generalized conservation strategy that
may have been developed for the species. The proposed rule would inform
the public, including landowners and businesses, of our critical
habitat designation and allow them time to review and provide comments.
(23) Comment: Two States commented that the Services have justified
the new definition of ``geographical area occupied by the species'' by
misrepresenting the court's decision in Otay Mesa Property L.P. v. DOI,
646 F.3d 914 (D.C. Cir. 2011), reversing 714 F. Supp. 2d 73 (D.D.C.
2010). The States contend that we asserted that the D.C. Circuit's
decision supported our interpretation, even though a thorough review of
the decision reveals the court did not hold or find that the Act allows
the Services to make a post-listing determination of occupancy if based
on adequate data, simply because the court did not decide that
particular issue.
Our Response: We agree that the D.C. Circuit did not hold or find
that the ESA allows the Services to make a post-listing determination
of occupancy. Our proposed rule, however, did not assert that the
circuit court opinion supported our interpretation. Instead, the
proposed rule correctly noted that the district court opinion supported
our interpretation. See 714 F. Supp. 2d at 83 (``The question,
therefore, is not whether FWS knew in 1997, when it listed the San
Diego fairy shrimp as endangered, that there were San Diego fairy
shrimp on Plaintiffs' property but, rather, whether FWS reasonably
concluded, based on data from 2001, that the shrimp had been on the
property in 1997.''). Because that decision was reversed by the D.C.
Circuit, however, we needed to explain what effect that D.C. Circuit's
decision had on the district court opinion with respect to this issue.
Because the D.C. Circuit reversed the district court's opinion on other
grounds (i.e., that the evidence in the record was inadequate), the
D.C. Circuit did not address the interpretive issue of whether later
data can support a determination of occupancy at the time of listing.
Thus, we stated, accurately, that the D.C. Circuit ``did not disagree''
with this aspect of the district court's opinion. We did not mean to
suggest that the D.C. Circuit had considered and affirmed this aspect
of the district court's opinion.
(24) Comment: One State commented that the Service's reliance on
the decision in Arizona Cattle Growers' Assoc. v. Salazar, 606 F.3d
1160 (9th Cir. 2010), to expand the definition of ``occupied'' is
misplaced because the Services oversimplify and misstate the court's
ruling. The State provided additional detail regarding the court's
analysis, noting a variety of factors that the court suggested were
relevant to a case-by-case determination of occupancy, and the court's
emphasis on reasonableness.
Our Response: None of the detail provided by the State is
inconsistent with our summary of the holding: ``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.''
(25) Comment: One commenter asserted that the ``physical or
biological features'' definition has too many if and if/then scenarios
that appear too scientifically attenuated to serve as an appropriate
basis for critical habitat designations.
Our Response: In defining physical and biological features, we
provided examples of types of features and conditions that we have
found to be essential to certain species based on experience over many
years of designating critical habitat for a wide variety of species.
The determination of specific features essential to the conservation of
a particular species will be based on the best scientific data
available and explained in the proposal to designate critical habitat
for that species, which will be available for public comment and peer
review.
(26) Comment: Several States commented that the new definition of
``physical or biological features'' is excessively broad and completely
unnecessary. They stated that the new definition goes too far and
allows the Services to include areas that do not currently have any
essential physical or biological features necessary for a species; they
asserted that the original language of the Act provides enough latitude
to allow for ephemeral, essential habitat requirements. Two States also
asked the Services to more clearly define the phrase ``reasonable
expectation'' found in the preamble discussion (``the Services could
conclude that essential physical or biological features exist in a
specific area . . . if there were documented occurrences of the
particular habitat type in the area and a reasonable expectation of
that habitat occurring again'').
Our Response: Because the term ``physical or biological features''
is not defined in the Act, the Services clarify how they have been
using this term. A ``reasonable expectation'' would be based on the
best scientific data available showing that the habitat has a temporal
or cyclical nature in that in some years particular habitat elements
may not be present, but the record indicates that, once certain
conditions are met, the habitat will recur and be used by the species.
(27) Comment: One State contended that the Services support the new
definition of ``physical or biological features'' with a flawed
interpretation of the opinion in Cape Hatteras Access Preservation
Alliance v. DOI, 344 F. Supp. 2d 108 (D.D.C. 2004). According to the
State: That opinion does not justify expanding the meaning and breadth
of the phrase; the Services should withdraw the definition because the
Services cite no authority for making
[[Page 7420]]
such a change and thus lack any justification for doing so; the Court
explicitly rejected the Service's attempt to broaden the scope of
critical habitat designation; and the Services should not attempt to
expand their authority by circumventing the Federal courts.
Our Response: The district court rejected the U.S. Fish and
Wildlife Service's critical habitat designation for the piping plover
as including lands that did not currently contain the features defined
in the rule, 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 the conservation of the plover. The
court noted that the Service had not made that assertion in the context
of the piping plover designation. To address this unintentional gap, we
are setting out our interpretation as part of the framework
regulations. This new definition clarifies that features can be dynamic
or ephemeral habitat characteristics. We clearly state in the rule that
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 features at the time of
designation to be critical habitat.
(28) Comment: Several commenters recommended that the Services
separately define ``physical features'' and ``biological features'' to
provide greater clarity.
Our Response: The Act refers to ``physical or biological
features,'' so it is not necessary to define them separately. We find
that the definition provided in the draft proposal along with the
examples and accompanying explanation provides sufficient clarity and
that separately defining these terms in the final regulation would not
be helpful. However, the Services must clearly articulate, in proposed
and final rules designating critical habitat for a particular species,
which physical or biological features are essential to the conservation
of the species and the basis for that critical habitat.
(29) Comment: Several commenters suggested that we remove ``at a
scale determined by the Secretary to be appropriate'' and add ``for a
specific unoccupied area to be designated as critical habitat, it must
be reasonably foreseeable that (1) such area will develop the physical
and biological features necessary for the species and (2) such features
will be developed in an amount and quality that the specific area will
serve an essential role in the conservation of the species.''
Our Response: We determine whether unoccupied areas are essential
for the conservation of the species by considering the best available
scientific data regarding the life-history, status, and conservation
needs of the species, which include considerations similar to those
raised by the commenter. However, we do not agree that the specific
findings suggested by the commenter either are required under the
statute or are useful limitations for the Services to impose on
themselves. Further, our rationale for why unoccupied areas are
essential for the conservation of the species will be articulated in
the proposed rule designating critical habitat for a particular species
and available for public review and comment. Finally, we decline to
remove the language ``at a scale determined by the Secretary to be
appropriate because we have concluded that it is useful to clarify that
different circumstances will require different scales of analysis, and
the Secretary retains the discretion to choose an appropriate scale.
(30) Comment: A commenter suggested that we add the phrase ``based
on the best scientific data available'' after the word ``appropriate''
in ``the Secretary will identify, at a scale determined by the
Secretary to be appropriate'' in Sec. 424.12(b)(2). The commenter
further stated that this provides a reference to the scientific basis
on which the Secretary will determine this scale.
Our Response: The phrase ``based on the best scientific data
available'' is captured in Sec. 424.12(b)(1)(ii). Under section
4(b)(2) of the statute, it also states that the Secretary shall
designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available.
It would be redundant to add the phrase to the section the commenter
has suggested. Nevertheless, as stated above, the Secretary's choice of
scale will be based on the best available scientific data.
(31) Comment: A commenter suggested that we replace the phrase
``conservation needs of the species'' with ``physical or biological
features'' in Sec. 424.12(b)(2). The commenter stated that the phrase
``conservation needs of the species'' is undefined and adds ambiguity
to the regulation.
Our Response: Section 424.12(b)(2) refers to the designation of
critical habitat in unoccupied areas. Under section 3(5)(A)(ii) of the
statute, unoccupied areas are subject only to the requirement that the
Secretary determine that such areas are essential for the conservation
of the species. The presence of physical or biological features is not
required by the statute for the inclusion of unoccupied areas in a
designation of critical habitat. Incorporating the edit suggested by
the commenter would limit Secretarial discretion in a way inconsistent
with the statute by mandating the presence of essential features as a
prerequisite to inclusion of unoccupied areas in a critical habitat
designation. Therefore, it would be inappropriate to use the term
``physical or biological features'' in this section.
(32) Comment: Several commenters stated that the Services' claim
that they may designate acres or even square miles without evidence
that those areas contain features essential to the conservation of the
species is contrary to the Act. Two States commented that the scale of
critical habitat should not be left to the Secretary's absolute
discretion and must be chosen and justified at a scale that both makes
sense in terms of the habitat needs of the species and is fine enough
to demonstrate that the physical or biological features are found in
each specific area of occupied habitat. One State also provided revised
language for Sec. 424.12(b)(1) by replacing ``at a scale determined by
the Secretary to be appropriate'' with ``at a scale consistent with the
geographical extent of the physical or biological features essential to
the species' conservation.''
Our Response: We state in the proposed regulation that the
Secretary need not determine that each square inch, yard, acre, or even
mile independently meets the definition of critical habitat. However,
setting out defined guidelines for the scale of an analysis in
regulations would not be practicable for the consideration of highly
diverse biological systems and greatly differing available data. Each
critical habitat designation is different in terms of area proposed,
the conservation needs of the species, the scope of the applicable
Federal actions, economic activity, and the scales for which data are
available. Additionally, the scale of the analysis is very fact
specific. Therefore, the Services must have flexibility to evaluate
these different areas in whatever way is most biologically and
scientifically meaningful. For example, for a narrow-endemic species, a
critical habitat proposal may cover a small area; in contrast, for a
wide-ranging species, a critical habitat proposal may cover an area
that is orders of magnitude greater. The appropriate scale for these
two species may not be the same. For the narrow-endemic species, we may
look at a very fine scale with a great level of detail. In contrast,
for the wide-ranging
[[Page 7421]]
species, which may cover wide expanses of land or water, we may use a
coarser scale, due to the sheer size of the proposed designation. Each
critical habitat proposal includes a description of the scope of the
area being proposed, and uses a scale appropriate to that situation
based on the best scientific data available. The suggested language
would not allow for the Secretarial discretion that is needed to be
flexible to meet the conservation needs of the species. The proposed
rule designating critical habitat for a particular species is made
available for public review and comment, and interested parties may
comment on the scale for a specific designation.
(33) Comment: Several commenters stated that, in reaching this
determination, the Services appear to conflate disparate terminology
(specific areas versus occurrences) and rely upon a vague term (range)
that does not adequately delineate what geographic areas are actually
occupied by a species. Several commenters also requested additional
explanation of the term ``range.''
Our Response: Under section 3(5)(A)(i) of the Act, specific areas
designated as critical habitat include those specific areas within the
geographical area occupied by the species at the time the species is
listed. As discussed in our proposal and this final rule, the
geographical area that may generally be delineated around the species'
occurrences is synonymous with the species' range. The term ``range''
used in our proposal refers to the general area currently occupied by
the species at the time the listing determination is made. These areas
are occupied by the species throughout all or part of the species' life
cycle, even if not used on a regular basis. Some examples we give are
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals. This scale of occupancy is
different from a very narrow or limited delineation of areas of
occupancy identified through presence and absence surveys for localized
occurrences of the species. We, therefore, disagree that we are using a
vague term in referring to range.
(34) Comment: Several commenters including one State stated that by
defining the geographical area occupied by the species as coextensive
with the ``range'' and including multiple areas of occurrence, the
Services are expanding the geographic extent of occupied habitat beyond
the limits of judicial interpretation. They suggested we should define
the area occupied by the species as limited to the specific location
where the species occurs on a regular or consistent basis.
Our Response: We have indicated that the geographical area occupied
by the species is likely to be larger than the specific areas that
would then be analyzed for potential designation under section
3(5)(A)(i). We are not suggesting that the specific areas included in
critical habitat should fill this area. To limit the definition to
specific locations where the species occurs on a regular or consistent
basis would not allow the Secretaries to designate areas that may be
important for the conservation of a listed species that may only be
periodically used by a species, such as breeding areas, foraging areas,
and migratory corridors, thereby limiting Secretarial discretion.
(35) Comment: One State asked if the range in the geographical area
occupied by the species definition refers to the historical range or
the currently occupied range.
Our Response: The term ``range'' as indicated in our proposal
refers to the generalized area currently occupied by the species at the
time the listing determination is made, not the historical range.
(36) Comment: One State also wanted to know if land-use
restrictions within the geographical area occupied by the species would
be put into place in addition to the designated critical habitat.
Our Response: The revised regulations would not result in any
change to land-use restrictions beyond the existing regulatory
requirements under section 7 of the Act that Federal agencies consult
with the Services to ensure that the actions they carry out, fund, or
authorize are not likely to destroy or adversely modify critical
habitat (see the final rule published elsewhere in today's Federal
Register). The Act provides no special regulatory protections for those
areas within the geographic area occupied by the species that are not
designated as critical habitat, although the section 7 prohibition on
jeopardy and the section 9 prohibitions may still be applicable.
(37) Comment: Several States disagree with the Services'
interpretation of the definition of ``occupied.'' This interpretation
and inclusion of ``periodic or temporary'' areas will lead to a much
larger consideration of critical habitat that is largely unnecessary
for species recovery.
Our Response: Identifying the geographic area occupied at the time
of listing is only the first step in designating critical habitat. In
occupied areas, we can only designate critical habitat if one or more
of the physical or biological features are present and are found to be
essential to the conservation of the species and may require special
management considerations or protection. The inclusion of periodic or
temporary areas would be based on the best scientific data available
for the species and these areas would have to meet the criteria above.
(38) Comment: Several commenters asked what constitutes being
``temporarily present?'' The Services should explain that occupied
areas require a demonstration of regular or consistent use within a
reasonable period of time. One State commented that the Services should
clarify the meaning of the terms ``periodically'' and ``temporarily''
to provide adequate guidance and set reasonable limits for potential
critical habitat designations.
Our Response: We will use the best scientific data available to
determine occupied areas including those that are used only
periodically or temporarily by a listed species during some portion of
its life history. This will be determined on a species-by-species
basis, and our rationale would be explained in the proposed and final
rules for these species, which would be available for public review and
comment.
(39) Comment: Several commenters, including two States, were
concerned about using ``indirect or circumstantial'' evidence to
determine occupancy and questioned whether this qualified as the best
scientific data available. One of the commenters asserted that the
Services should only designate areas as occupied based on scientific
evidence (including traditional and local knowledge) that breeding,
foraging, or migratory behaviors actually occur in that location on a
regular or consistent basis.
Our Response: The Services will rely on the best scientific data
available in determining which specific areas were occupied at the time
of listing and which of these contain the features essential to the
conservation of the species. The best available scientific data in some
cases may only be indirect or circumstantial evidence. We will explain
in the proposed rule designating critical habitat for a particular
species if and how such evidence was used to determine occupancy and
will provide the public with an opportunity to review and comment.
(40) Comment: Several commenters, including two States, asked us to
define and explain ``life-history needs.''
Our Response: We give a sample list of life-history needs in the
rule. This list includes but is not limited to water characteristics,
soil type, geological features, sites, prey, vegetation, symbiotic
species, or other features. The
[[Page 7422]]
life-history needs are what the species needs throughout its different
life stages to survive and thrive.
(41) Comment: One State commented that the term ``sites'' in the
definition of ``physical or biological features'' is wholly ambiguous
and must be defined, explained, or deleted.
Our Response: We included the term ``sites'' in the definition of
physical or biological features to keep the same level of specificity
as currently is called for in the regulations, and our current
regulations list ``sites for breeding, reproduction, rearing of
offspring, germination, or seed dispersal'' among the examples of
primary constituent elements that might be specified (50 CFR
424.12(b)(4)). The term ``sites'' does not need to be defined or
further explained because we rely on a plain dictionary meaning of
``site'': The place, scene, or point of an occurrence or event
(Merriam-Webster, 2015).
(42) Comment: One State suggested that we simplify the ``physical
or biological features'' definition as follows: ``Geographic or
ecological elements within a species' range that are essential to its
survival and reproduction, whether single or in combination, or
necessary to support ephemeral habitats. Features may be described in
conservation biology terms, including patch size and connectivity.''
Our Response: We appreciate the State providing edits to simplify
the phrase; however, based on our years of experience designating
critical habitat and implementing it, we find that the text in our
proposal and this final rule will provide greater clarity.
(43) Comment: Several commenters, including one State, indicated
that we needed a more specific delineation of what features may be
considered and how they relate to the needs of the species.
Our Response: We respectfully disagree with the commenters that
further clarification should be added in this revised regulation.
However, we do agree that we need to clearly articulate in our proposed
and final rules designating critical habitat for each species how the
essential features relate to the life-history and conservation needs of
the species. This type of specificity will be in the individual
proposed and final rules designating critical habitat for each species.
As is our general practice, we will clearly lay out the features and
how they relate to the needs of the species in each rule.
(44) Comment: Several commenters asked us to clarify the
distinction, if any, between features that support the life-history
needs of the species and features that are essential to the
conservation of the species.
Our Response: Our definition of physical or biological features is
the first step, and we do not assume that all features are essential.
In many circumstances the features that support life-history needs of
the species are the features that are essential to the conservation of
the species. The features that are essential to the conservation of the
species are those found in the appropriate quality, quantity, and
spatial and temporal arrangements in the context of the life history,
status, and conservation needs of the species. This varies according to
the species. For example, for a small, endemic species the features
that support the life-history needs may be essential themselves, but
for a wide-ranging species what rises to the level of essential
features may rely more on the quality, quantity, and arrangement of
those features.
(45) Comment: Several commenters sought an explanation for how the
requisite physical and biological features would be identified,
documented, and verified during the critical-habitat-designation
process.
Our Response: We use the best scientific data available to
determine the life-history needs of the species. The essential physical
or biological features support the life-history and conservation needs
of the species. A description of the essential features for each
species and how they relate to its life-history and conservation needs
will be articulated in the proposed and final rules designating
critical habitat for a particular species. This description of the
essential features, as well as the designation that is based on them,
will be available for public review and comment during the rulemaking
process.
(46) Comment: Several commenters stated that the description of the
relevant features cannot be in broad terms, but must be specific enough
to limit critical habitat to the most ``essential areas'' and help
provide an understanding of what the species actually requires to
return from the brink of extinction.
Our Response: When evaluating occupied habitat, we agree that the
statute requires us to determine which areas contain physical or
biological features essential to the conservation of the species (that
may require special management considerations or protection). In every
proposed and final rule designating critical habitat for a particular
species, we describe those features that we have determined to be
essential and explain the basis for our determination. However, we
respectfully disagree that broadly described features are necessarily
inappropriate. The level of specificity in our description of the
features is primarily determined by the state of the best scientific
information available for that species. We will provide as much
specificity as is appropriate in light of what is known about the
species' habitat needs, while recognizing that the available science
may still be evolving for that species. Where the available information
is still evolving, it may not be possible or necessary to provide a
high level of specificity, and it may frustrate the conservation
purposes of the Act to attempt to do so. See Arizona Cattle Growers'
Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1025 n.2 (D. Ariz. 2008),
aff'd sub nom. Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160
(9th Cir. 2010).
Finally, we must disagree with the commenter's suggestion that in
identifying essential features the Services must identify what the
species' actually requires to return from ``the brink of extinction.''
Critical habitat is generally required for threatened species as well
as endangered species. Moreover, the Services are not required to have
developed a recovery plan prior to designating critical habitat for any
species. Home Builders Ass'n of Northern Cal. v. U.S. Fish and Wildlife
Service, 616 F.3d 983, 989-90 (9th Cir. 2010). Our determinations of
which features are ``essential'' thus depend on an understanding of the
species' habitat needs rather than on a specific projection of how the
species could be recovered.
(47) Comment: Several commenters stated that the plain language of
the Act limits the scope of any designated area to those features
essential to the species, and does not authorize the designation of
areas that may include those subsidiary characteristics that are
essential for the development of the features themselves.
Our Response: We respectfully disagree and interpret the statutory
language not to limit ``features'' to those habitat characteristics
that make habitat immediately usable by the species. In other words,
the physical or biological features referred to in the definition of
``critical habitat'' can include features that allow for the periodic
development of habitat characteristics immediately usable by the
species. An interpretation of ``features'' that referred only to
immediately usable habitat would render many essential areas ineligible
for designation as critical habitat, thwarting Congress's intent that
designation of critical habitat should contribute to species'
conservation.
[[Page 7423]]
We will use the best scientific data available to identify features
essential to the conservation of the species and clearly identify how
they relate to the life-history and conservation needs of the species.
When considering what features are essential, it is sometimes necessary
to allow for the dynamic nature of the habitat, such as successional
stages of habitat, which could consist of old-growth habitat or habitat
newly formed through disturbance events such as fire or flood events.
Thus, the physical or biological features essential to the conservation
of the species may include features that support the occurrence of
ephemeral or dynamic habitat conditions. The example we gave in the
proposed rule was a species that 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
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. The flooding event would not be
a subsidiary characteristic as suggested by the commenter, but would
itself be a feature necessary for the vegetation to return. So in this
case, it would be a combination of features, flooding, and vegetation
that would be necessary to the conservation of the species.
(48) Comment: Several commenters, including two States, were
concerned that designating critical habitat based on the presence of
certain characteristics that may be necessary to eventually support the
periodic occurrence of riparian vegetation, without evidence that the
vegetation would actually develop, constitutes an impermissible
reliance upon hope and speculation. They further stated that the
Services must go through a separate inquiry determining why it is
reasonably foreseeable to conclude that the potential critical habitat
will develop the physical or biological features at some point in the
future.
Our Response: We will use the best scientific data available to
support the identification of features essential to the conservation of
the species and clearly identify how they relate to the life-history
and conservation needs of the species. When considering what features
are essential, it is sometimes necessary to allow for the dynamic
nature of the habitat, such as successional stages of habitat, which
could consist of old-growth habitat or habitat newly formed through
disturbance events such as fire or flood events. This does not
constitute reliance on mere hope or speculation but is based on an
understanding of the relevant ecological processes. We also disagree
with the characterization of this situation as involving ``potential
critical habitat'' that ``will develop the physical or biological
features at some point in the future.'' Properly understood, the
essential features would currently exist in these areas, even though
they may not be currently manifesting the shorter-term habitat
conditions immediately usable by the species. Such areas may currently
meet the definition of ``critical habitat'' and not be merely
``potential critical habitat.''
(49) Comment: Several commenters stated that the Services' position
that ``most circumstances'' require ``special management'' is
inconsistent with congressional intent to narrow the definition of
``critical habitat'' to require a very careful analysis of what is
actually needed for survival of the species. Several commenters,
including two States, also indicated that the Services must continue to
make the factual determination that special management is needed as
required by the Act.
Our Response: We make the determination and describe the special
management considerations or protections that may be needed in the
proposed and final rules designating critical habitat for each critical
habitat area. However, it has been our experience that, in most
circumstances, the physical or biological features essential to the
conservation of endangered species may require special management
considerations or protection in all areas in which they occur. This is
particularly true for species that have significant habitat-based
threats, which is the case for most of our listed species. The statute
directs us to identify the essential physical or biological features
which ``may require'' special management considerations or protection,
a standard that suggests we should be cautious and protective. We do
acknowledge that if in some areas the essential features clearly do not
require special management considerations or protection, then that area
does not meet this part (section 3(5)(A)(i)) of the definition of
``critical habitat.'' However, we expect based on our experience with
designating critical habitat that these circumstances will be rare. In
our proposed and final critical habitat rules, we will continue to make
factual determinations as to whether special management considerations
or protection may be required.
(50) Comment: Several States commented that the new interpretation
of ``special management considerations or protection'' set out in the
preamble appears to presume that areas covered by existing protection
plans will actually be more likely to be designated as critical
habitat, and could act as a disincentive to implementing voluntary pre-
designation conservation initiatives, in direct contravention to recent
Services' policies attempting to incentivize voluntary conservation.
Our Response: We respectfully disagree. We are directed by the Act
to identify areas that meet the definition of ``critical habitat''
(i.e., occupied areas that contain the essential physical or biological
features that may require special management considerations or
protection and unoccupied areas that are essential for the conservation
of a species) without regard to land ownership. We also make the
determination and describe the special management considerations or
protections that may be needed in the proposed and final rules for each
critical habitat area. The consideration of whether features in an area
may require special management considerations or protection occurs
independent of whether any form of management or protection occurs in
the area. This does not preclude the Services from considering the
exclusion of these areas under section 4(b)(2) of the Act based on
conservation programs, plans, and partnerships prior to issuing the
final critical habitat rule.
(51) Comment: Several commenters stated that the Services cannot
designate critical habitat based on the general assertions that the
area contains the essential physical or biological features. Instead,
the Services must demonstrate that the relevant features are found
within a specific area.
Our Response: In the first part of the definition of ``critical
habitat'' in the Act, we are required to identify specific areas within
the geographical area occupied by the species at the time it is listed
on which are found those physical or biological features essential to
the conservation of the species and which may require special
management considerations or protection. In our proposed and final
critical habitat rules, we identify which features occur in the area,
the basis on which we are identifying them as essential features,
including how they provide for the life-history and conservation needs
of the species, and whether they may require special management
considerations or
[[Page 7424]]
protection. These rules will be available for public review and
comment.
(52) Comment: Several commenters suggested that we remove
``principles of conservation biology'' from the definition of
``physical and biological features.''
Our Response: We respectfully disagree. The sentence ``Features may
also be expressed in terms of relating to principles of conservation
biology, such as patch size, distribution distances, and connectivity''
explains more clearly how we may identify the features. The principles
of conservation biology are generally accepted among the scientific
community and consistently used in species-at-risk status assessments
and development of conservation measures and programs.
(53) Comment: Several commenters requested that we add language
delineating the area ``around'' the species occurrences, either by
using a distance or a reference to the species' natural functions in
the geographic area definition.
Our Response: We are unable to determine a universal distance or a
reference to the species' natural functions that would be applicable to
all species. This analysis and determination is best left to the
specific critical habitat rulemaking for a given species. In those
proposed and final rules, we can be specific for each species based on
its life-history needs and more precisely define the geographical area
occupied by the species. The rules will be available for public review
and comment.
(54) Comment: Several commenters, including one State, indicated
that the proposed Sec. 424.12(b)(2) and deletion of current Sec.
424.12(e) would relieve the Services of any requirements that they
justify the designation of unoccupied habitat by demonstrating the
inadequacies of occupied habitat for the conservation of the species.
They further stated that this was a major departure in the law
regarding designation of critical habitat.
Our Response: We respectfully disagree. The proposed rule clearly
explains that the Act does not require the Services to first prove that
the occupied areas are insufficient before considering unoccupied
areas. The regulatory provision at 424.12(e) merely restated the
requirement from the statutory definition in a different way. We will
still explain based on the best scientific data available, why the
unoccupied areas are essential for the conservation of the species.
(55) Comment: Several commenters pointed out that we use ``no
longer necessary'' in the new definition of ``conserve, conserving, and
conservation'' and the words ``no longer appropriate'' in the
definition of ``recovery'' in 50 CFR 402.02. The commenters asserted
that these are two different standards and that we should pick one of
them.
Our Response: The words ``no longer necessary'' are used in the
statutory definition of ``conserve, conserving, and conservation'' in
the Act. The rule simply points out that the concept described in the
statutory language is equivalent to ``recovery.'' That term is defined
in Sec. 402.02, which we are not revising at this time.
(56) Comment: Several commenters stated that the National Marine
Fisheries Service's interpretation of the phrase ``which interbreeds
when mature'' was upheld by the Ninth Circuit in Modesto Irr. Dist. v.
Gutierrez, 619 F.3d 1024 (9th Cir. 2010), and that the Act also
requires that a group of organisms must interbreed when mature to
qualify as a distinct population segment (DPS), which is in contrast to
the Services' interpretation of the phrase in the proposed rule.
Our Response: We respectfully disagree that our interpretation of
``interbreeds when mature'' is at odds with the ruling in Modesto
Irrigation District. In that case, the Ninth Circuit did not hold that
actual interbreeding among different populations is required in order
to include such populations in a single DPS. To the contrary, the court
made it clear that Congress did not intend to create a ``rigid
limitation'' on the Services' discretion to define DPSs. On the
``narrow issue'' of whether the ESA or the DPS Policy required that
NMFS place interbreeding steelhead and rainbow trout in the same DPS,
the court deferred to NMFS's judgment that there was no such
requirement. Id. at 1037. While NMFS did state in the challenged rule
that ``[t]he ESA requirement that a group of organisms must interbreed
when mature to qualify as a DPS is a necessary but not exclusive
condition'' (71 FR 834, 838 (Jan. 5, 2006)), nothing in the rule
suggested that NMFS's position was that actual interbreeding among
disparate populations was required, and that biological capacity to
interbreed would not be sufficient.
(57) Comment: Several commenters stated that the Services did in
fact revise the regulations in our discussion of ``interbreeds when
mature'' by inserting the phrase ``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'' to the definition of a ``species.'' They further stated
that this was an Administrative Procedure Act violation and that the
phrase should be removed in the final rule.
Our Response: The commenters are correct that we proposed to amend
the definition of ``species.'' In the preamble we wrote, ``Finally, we
explain our interpretation of the meaning of the phrase `interbreeds
when mature,' which is found in the definition of `species.' . . .
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.'' Our intent was to explain how we have
interpreted the phrase, but by inadvertently including this
interpretation in the regulatory language of the proposed rule, we in
fact were proposing to change the definition of ``species'' to insert,
``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.'' We have removed the
proposed language from the definition of ``species'' in this final rule
and left only the language in the preamble. The Services are not
amending the definition.
(58) Comment: A commenter suggested that the Services clarify the
meaning of ``being considered by the Secretary'' in the definition of
the term ``candidate.'' The commenter suggested that the final rule
substitute the more narrow definition found in the FWS candidate
species fact sheet, which states: ``Candidate species are plants and
animals for which the U.S. Fish and Wildlife Service has sufficient
information on their biological status and threats to propose them as
endangered or threatened under the Endangered Species Act, but for
which development of a proposed listing regulation is precluded by
other higher priority listing activities.''
Our Response: We agree with the commenter that the statement in the
FWS candidate fact sheet is an appropriate meaning of the phrase
``being considered by the Secretary'' found in the definition of
candidate. We emphasize that we did not change the definition of
``candidate'' in this regulation.
Criteria for Designating Critical Habitat
(59) Comment: The Western Governors' Association requested that the
Services provide a thorough, data-based explanation of the basis for
the determination that areas outside the range occupied at the time of
listing are or will be essential habitat.
[[Page 7425]]
Our Response: Under section 3(5)(A)(ii) of the Act, to designate as
critical habitat specific areas that are outside the geographical area
occupied by the species at the time the species is listed, the Services
must determine that the areas are essential for the conservation of the
species. This determination must be based on the best scientific data
available concerning the particular species and its conservation needs.
When the Services propose to designate specific areas pursuant to
section 3(5)(A)(ii), they have under the existing regulations and will
under the revised regulations explain the basis for the determination,
including the supporting data. Thus, the Services' explanation will be
available for public comment.
(60) Comment: Several commenters, including one State, were
concerned that the essential areas in unoccupied areas may not even be
suitable for the species and that this is an erroneous and unreasonable
interpretation of an otherwise clear statutory statement and should be
withdrawn.
Our Response: Section 3(5)(A)(ii) of the Act expressly allows for
the consideration and inclusion of unoccupied habitat in a critical
habitat designation if such habitat is determined to be essential for
the conservation of the subject species. These areas do not have to
contain the physical or biological features and are not subject to a
finding that they may require special management considerations or
protection. This is in contrast to what is required under the first
part of the definition of ``critical habitat'' (section 3(5)(A)(i) of
the Act) for areas occupied at the time of listing.
(61) Comment: Several commenters stated that the Services may only
properly make a ``not prudent'' finding if there is specific
information that increased poaching would result from designating
critical habitat.
Our Response: We respectfully disagree with the commenters'
assertion. The current regulations (49 FR 38900; October 1, 1984, and
at 50 CFR 424.12(a)(1)) allow for a determination that critical habitat
is not prudent for a species if such designation would: (1) Increase
the degree of threat to the species through the identification of
critical habitat, or (2) not be beneficial to the species. The
determination that critical habitat is not prudent for a listed species
is uncommon, especially given that most species are listed, in part,
because of impacts to their habitat or curtailment of their range. Most
``not prudent'' findings have resulted from a determination that there
would be increased harm or threats to a species through the
identification of critical habitat. For example, if a species was
highly prized for collection or trade, then identifying specific
localities of the species could render it more vulnerable to collection
and, therefore, further threaten it. However, in some circumstances, a
species may be listed because of factors other than threats to its
habitat or range, such as disease, and the species may be a habitat
generalist. In such a case, on the basis of the existing and revised
regulations, it is permissible to determine that critical habitat is
not beneficial and, therefore, not prudent. It is also permissible to
determine that a designation would not be beneficial if no areas meet
the definition of ``critical habitat.''
(62) Comment: Several commenters inquired about whether the
Services would revise the regulations to provide greater flexibility in
defining a greater breadth of circumstances where a determination can
be made that the designation of critical habitat for a species is not
beneficial to its conservation and, therefore, not prudent.
Our Response: As noted above, it is permissible under the current
and revised regulations to determine that designating critical habitat
for a species is not beneficial and, therefore, not prudent. The text
of these revised regulations further clarifies the non-exclusive list
of factors the Services may consider in evaluating whether designating
critical habitat is not beneficial. The inclusion of ``but not limited
to'' to modify the statement ``the factors the Services may consider
include'' allows for the consideration of alternative fact patterns
where a determination that critical habitat is not beneficial would be
appropriate. We think it is important to expressly reflect this
regulatory flexibility in the revised regulations. Nonetheless, based
on the Services' history of implementing critical habitat, we
anticipate that making a not-prudent determination on any fact pattern
will be rare.
(63) Comment: One State commented that the Services dropped the
word ``probable'' from the revised Sec. 424.12(a) when talking about
economic impacts and that the word should be retained in the final
rule.
Our Response: We agree and have retained the word ``probable'' in
this final rule. It is consistent with the revised final regulation in
50 CFR 424.19 (78 FR 53058) and our draft policy on exclusions under
section 4(b)(2) of the Act. We note that in this context the term
``probable'' means reasonably likely to occur.
(64) Comment: Several commenters recommended adding after the word
``threat'' in the second sentence to Sec. 424.12(a)(1)(ii), the words
``sufficient to warrant listing the species as threatened or
endangered.''
Our Response: While we agree with the commenters' intent, we find
that adding the phrase would be redundant because we would only be
making a determination as to whether critical habitat is prudent if the
species was either being proposed for listing simultaneously or is
already listed.
(65) Comment: Several commenters thought the Services should simply
delete Sec. 424.12(a)(1)(ii) instead of expanding it. They further
stated that the Act does not require that a species currently be
threatened by habitat loss before critical habitat is designated and
protected, and the spirit of the Act would not be served by the
imposition of such a requirement by regulation.
Our Response: Critical habitat is a conservation tool under the Act
that can provide for the regulatory protection of a species' habitat.
The current regulations and the proposed revisions do not establish a
requirement that a species be threatened by the modification,
fragmentation, or curtailment of its range for critical habitat to be
beneficial and, therefore, prudent to designate. However, the
regulation and revisions establish a framework whereby if a species is
listed under the Act and it is determined through that process that its
habitat is not limited or threatened by destruction, modification, or
fragmentation, then it may not be beneficial or prudent to designate
critical habitat. While this provision is intended to reduce the burden
of regulation in rare circumstances in which designating critical
habitat does not contribute to conserving the species, the Services
recognize the value of critical habitat as a conservation tool and
expect to designate it in most cases.
(66) Comment: Several commenters stated that Sec. 424.12(a)(2) is
not consistent with the plain meaning of the Act and should be deleted
from the final rule. They stated the proposed minor word changes did
not improve the situation.
Our Response: The minor word changes to Sec. 424.12(a)(2) are
meant to make the language more consistent with the language in the
Act. This section is necessary to inform the public as to the
circumstances in which the Services will make a not-determinable
finding on critical habitat and thereby invoking the 1-year extension
of section 4(b)(6)(C)(ii) of the Act. 16 U.S.C. 1533(b)(6)(C)(ii).
[[Page 7426]]
(67) Comment: A commenter stated that when the Services deem
critical habitat as not determinable due to a lack of data for habitat
analyses or lack of knowledge on biological needs of the species, the
Services should regularly check for new data and/or make efforts to
collect necessary data and move forward with critical habitat
designations. One State also commented that critical habitat
designations should only be made based on the best available scientific
data and information, and in instances where data or information is
lacking, the Services have an obligation to delay a designation until
such time that sufficient information is acquired.
Our Response: Finding that critical habitat is not determinable
only invokes a 1-year extension of the deadline for finalizing a
critical habitat designation under section 4(b)(6)(C)(ii) of the Act.
16 U.S.C. 1533(b)(6)(C)(ii). At the conclusion of the year, the
Services must move forward with the designation and have no authority
under the Act to further delay designation (unless we determine that
designation is not prudent). We agree that critical habitat
designations must only be made based on the best scientific data
available as required by the Act. If we initially do not have enough
data to make a critical habitat determination, then we can invoke the
1-year extension allowed under the Act. The Services use that time to
gather additional data. At the end of the 1-year extension, the
Services must use the best scientific data available to make the
critical habitat determination.
(68) Comment: One State suggested that climate change is more
appropriately addressed during a 5-year status review and the critical
habitat revision process than trying to attempt to accommodate future
critical habitat by predicting areas necessary to support the species'
recovery. It further asserted that the Services' proposed authority to
designate areas that are currently unoccupied and which are not now
necessary to support the species' recovery, but may eventually become
necessary, is a vast expansion of the critical habitat program and
contrary to the focus in the Act on current habitat conditions.
Our Response: We agree that 5-year status reviews and the critical
habitat revision process can play important roles regarding the
conservation needs of a species in response to habitat changes
resulting from climate change. However, the statute as written allows
for sufficient flexibility to address the effects of climate change in
a critical habitat designation, and, therefore, the clarifications
provided in our proposal and this final rule do not expand the
Services' authority. There have been specific circumstances, as
discussed in our proposal, where data have been available showing the
shift in habitat use by a species in response to the effects of climate
change. In those cases where the best scientific data available
indicate that a species may be shifting habitats or habitat use, then
it is permissible to include specific areas accommodating these changes
in a designation, provided that the Services can explain why the areas
meet the definition of ``critical habitat.'' Although some such
instances are based on reasonable predictions of how habitat will be
used by the species in the future, they are based on determinations
that the areas are currently essential to the species. In other words,
we may find that an unoccupied area is currently ``essential for the
conservation'' even though the functions the habitat is expected to
provide may not be used by the species until a point in the foreseeable
future. The data and rationale on which such a designation is based
will be clearly articulated in our proposed rule designating critical
habitat. The Services will consider whether habitat is occupied or
unoccupied when determining whether to designate it as critical habitat
and use the best available scientific data on a case-by-case basis
regarding the current and future suitability of such habitat for
recovery of the species, and when developing conservation measures.
(69) Comment: Several commenters requested clarification of new
Sec. 424.12(e) with regard to the differences in the way the Services
handle designation of critical habitat for species listed prior to the
1982 amendments to the Act versus species listed after the 1982
amendments.
Our Response: If the Services designate critical habitat for
species listed prior to the 1982 amendments, the designation is
procedurally treated like a revision of existing critical habitat even
if critical habitat was never designated. 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)).
(70) Comment: Several commenters, including two States, indicated
that removing references to ``primary constituent elements''
dramatically and unnecessarily expands the scope of critical habitat
and confuses instead of clarifies critical habitat designation, leading
to more litigation.
Our Response: Removing references to ``primary constituent
elements'' from the regulation will not result in expansion of the
scope of critical habitat. Removing this phrase is not intended to
substantively alter anything about the designation of critical habitat,
but to eliminate redundancy in how we describe the physical or
biological features. The phrase ``primary constituent element'' is not
found in the Act and the regulations have never been clear as to how
primary constituent elements relate to or are distinct from physical or
biological features essential to the conservation of the species, which
is the phrase used in the Act. In fact, the removal of the phrase
``primary constituent elements'' will alleviate the tension caused by
trying to understand the relationship between the phrases. The
specificity of the primary constituent elements that has been discussed
in previous designations will now be discussed in the descriptions of
the physical or biological features essential to the conservation of
the species.
(71) Comment: Several commenters including several States were
opposed to elimination of Sec. 424.12(e) as this section is necessary
and intentionally limiting and is an accurate implementation of the
statutory definition and Congressional intent. Several commenters also
questioned that when the Services promulgated Sec. 424.12(e) in 1980,
that we explained in the preamble to that rule that the limitation in
Sec. 424.12(e) was intended to ``implement the statutory requirement''
that unoccupied areas may be designated ``only if necessary to ensure
the conservation of the species.'' The Services do not address this
prior interpretation at all, or explain why a rule that it once enacted
as necessary to implement a statutory requirement is now unnecessary.
Our Response: We respectfully disagree. Section 424.12(e) did not
allow us to designate unoccupied areas unless a designation limited to
its present range (occupied) would be inadequate to ensure the
conservation of the species. As we stated in the proposed rule, there
is no suggestion in the legislative history that the Services were
expected to exhaust occupied habitat before considering whether any
unoccupied areas may be essential.
[[Page 7427]]
Further, section 3(5)(A) of the Act expressly allows for the
consideration and inclusion of unoccupied habitat in a critical habitat
designation if such habitat is determined to be essential for the
conservation of the subject species. There is no specific language in
the Act that requires the Services to first prove that the inclusion of
all occupied areas in a designation are insufficient to conserve the
species before considering unoccupied areas. However, the existing
implementing regulations state that such unoccupied habitat could only
be considered if a determination was made that the Service(s) could not
recover the species with the inclusion of only the occupied habitat.
We have learned from years of implementing the critical habitat
provisions of the Act that often a rigid step-wise approach, i.e.,
first designating all occupied areas that meet the definition of
``critical habitat'' (assuming that no unoccupied habitat is
designated) and then, only if that is not enough, designating essential
unoccupied habitat, does not necessarily serve the best conservation
strategy for the species and in some circumstances may result in a
designation that is geographically larger, but less effective as a
conservation tool. Our proposed change will allow us to consider the
inclusion of occupied and unoccupied areas in a critical habitat
designation following at minimum a general conservation strategy for
the species. In some cases, we have and may continue to find, that the
inclusion of all occupied habitat in a designation does not support the
best conservation strategy for a species. We expect that the concurrent
evaluation of occupied and unoccupied areas for a critical habitat
designation will allow us to develop more precise and deliberate
designations that can serve as more effective conservation tools.
Additionally, there is no specific language in the Act that requires
the Services to first prove that the inclusion of all occupied areas in
a designation are insufficient to conserve the species before
considering unoccupied areas. The statutory language is sufficiently
clear that it does not need explanation in the revised regulation, and,
moreover, to the extent that the 1980 regulation language differs from
the statutory language, it does not add any clarity.
(72) Comment: Several commenters, including one State, disagreed
that unoccupied areas need not have the features essential to the
conservation of the species and that the Services propose to unlawfully
write this statutory requirement out of the Act. The State also pointed
out that the Services' current position on this issue is distinctly
contrary to the position the Services took in 1984 when the existing
regulations were adopted.
Our Response: Under the second part of the definition of ``critical
habitat'' in the Act (section 3(5)(A)(ii)), the Services are to
identify specific areas outside the geographical area occupied by the
species, at the time it is listed in accordance with the provisions of
section 4 of the Act, upon a determination by the Secretary that such
areas are essential for the conservation of the species. In contrast to
section 3(5)(A)(i), this provision does not mention physical or
biological features, much less require that the specific areas contain
the physical or biological features essential to the conservation of
the species. These are two clearly distinct provisions. The unoccupied
areas do not have to presently contain any of the physical or
biological features, which is not a change from the way we have been
designating unoccupied critical habitat (see, e.g., Markle Interests v.
USFWS, 40 F. Supp. 3d 744 (E.D. La. 2014)).
(73) Comment: One State recommended that the Services develop a
policy or metric to determine whether a particular area should be
designated as critical habitat in unoccupied areas.
Our Response: This final rule explains the Services' general
parameters for designating critical habitat. The details of why a
specific area is determined to be essential to the conservation of the
species will in part be directed by any generalized conservation
strategy developed for the species, and clearly articulated in our
proposed and final rules designating critical habitat. That
determination is a fact-specific analysis and is based on the best
available scientific data for the species and its conservation needs.
The proposed rule for each critical habitat designation will be subject
to public review and comment.
(74) Comment: A commenter suggested that the Services designate
enough critical habitat at the time of listing to ensure that a species
can recover.
Our Response: In evaluating which areas qualify as critical habitat
and specific areas finalized (subject to section 4(b)(2) exclusions,
see final policy published elsewhere in today's Federal Register), we
follow the statutory requirements to identify those occupied areas that
contain the physical or biological features essential to the species'
conservation that may require special management considerations or
protection and any unoccupied areas that we determine to be essential
for the species' conservation. Designation of critical habitat is one
important tool that contributes to recovery, but a critical habitat
designation alone may not be sufficient to achieve recovery. Indeed,
given the limited regulatory role of a critical habitat designation
(i.e., through section 7's mandate that Federal agencies avoid
destruction or adverse modification of critical habitat, see final rule
published elsewhere in today's Federal Register), it is generally not
possible to look to a critical habitat designation alone to ensure
recovery. Also, we must designate critical habitat according to
mandatory timeframes, very often prior to development of a formal
recovery plan. See Home Builders Ass'n of Northern Cal. v. U.S. Fish
and Wildlife Service, 616 F.3d 983, 989-90 (9th Cir. 2010). However,
although a critical habitat designation will not necessarily ensure
recovery, it will further recovery because the Services base the
designation on the best available scientific information about the
species' habitat needs at the time of designation. The best available
information will include any generalized conservation strategy or
criteria that may have been developed for the species in consultation
with staff working in recovery planning and implementation to ensure
collaboration, consistency, and efficiency as the Services work with
the public and partners to recover a listed species.
(75) Comment: A commenter stated that the proposed rule clarifies
that the Services have the discretion to designate critical habitat for
species listed before 1978, but does not specify when that discretion
would be used. The commenter requested that the Services identify
guidelines or standards for judging when to designate critical habitat
for pre-1978 species.
Our Response: Whether to exercise discretion to designate critical
habitat for species listed prior to 1978 is a case-specific
determination dependent on the conservation needs of the species,
scientific data available, and the resources available for additional
rulemaking. Guidelines on this point could limit Secretarial discretion
and may not allow for sufficient flexibility in furthering the
conservation of a species.
(76) Comment: Several commenters were concerned that the Services
must commit to using the best scientific data available when
designating unoccupied areas as critical habitat.
Our Response: We are mandated by the Act to use (and are committed
to using) the best scientific data available in determining any
specific areas as critical habitat, regardless of occupancy.
[[Page 7428]]
(77) Comment: Several Tribes stated that while the Services readily
acknowledge in the proposal their responsibility to communicate
meaningfully with recognized Federal Tribes on a government-to-
government basis, the proposed revision does nothing to clarify how the
Services will carry out this responsibility.
Our Response: These revised regulations set forth our general
practice for designating critical habitat, clarify definitions and
phrases, and in general align the regulations with the statute. The
revised regulations are not intended to be prescriptive in how the
Services will implement the provisions or coordinate with federally
recognized Tribes that are potentially affected. However, the Services
are committed to communicate and coordinate meaningfully and
effectively with federally recognized Tribes concerning actions under
the ESA, including the development and implementation of critical
habitat for species that may occur on their lands. We rely on the
requirements of S.O. 3206 to provide the guidance on how the Services
will carry out this responsibility. We have often found that the best
and most meaningful coordination and collaboration, including
fulfilling our responsibilities under S.O. 3206, occurs between our
Regional and field offices and a specific Tribe on a particular
species.
(78) Comment: Several commenters were opposed to the inclusion of
the proposed Sec. 424.12(g), saying the Act makes no distinction
between foreign and domestic species and requires that all listed
species receive critical habitat unless doing so is not prudent or
determinable.
Our Response: We respectfully disagree. Subsection (g) is a
continuation of existing subsection (h), which has long codified the
Services' understanding that critical habitat should not be designated
outside of areas under United States jurisdiction. This interpretation
is well supported. The Act makes a distinction between coordination
with and implementation of the provisions of the ESA between States and
local jurisdictions within the United States versus with foreign
countries. Section 4(b)(1)(A), which deals with listing species,
provides that the Secretary shall consult, as appropriate, not only
with affected States, but also, in cooperation with the Secretary of
State, with the country or countries in which the species is normally
found. In contrast, section 7 of the ESA does not include a requirement
to consult with foreign governments. Further, section 8(b)(1) states
that ``the Secretary, through the Secretary of State, shall encourage--
(1) foreign countries to provide for the conservation of fish or
wildlife and plants including endangered species and threatened species
listed pursuant to section 4.'' It is clear that Congress understood
the distinction between implementing the ESA within the jurisdiction of
the United States and implementing the ESA within the jurisdiction of
foreign countries. It then follows that since Congress did not
explicitly state that critical habitat shall be designated in foreign
countries or that the Secretary consult, as appropriate, with foreign
countries on a designation of critical habitat, then the designation of
critical habitat is limited to lands within the jurisdiction of the
United States.
Justice Stevens approved of the Services' conclusion in his
concurrence in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
There, he favorably noted the Service's longstanding interpretation of
the limitation of critical habitat designations to areas within the
jurisdiction of the United States:
The Secretary of the Interior and the Secretary of Commerce have
consistently taken the position that they need not designate
critical habitat in foreign countries. See 42 FR 4869 (1977)
(initial regulations of the Fish and Wildlife Service and the
National Marine Fisheries Service on behalf of the Secretary of the
Interior and the Secretary of Commerce). Consequently, neither
Secretary interprets Sec. 7(a)(2) to require federal agencies to
engage in consultations to ensure that their actions in foreign
countries will not adversely affect the critical habitat of
endangered or threatened species.
That interpretation is sound. . . .
Id. at 587 (Stevens, J., concurring).
(79) Comment: One State requested that the Services include a new
Sec. 424.12(e) that requires that designation will be made after
consultation with the affected States. It would read, ``In designating
any area as critical habitat, the Secretary shall consult with affected
States (those in which the proposed critical habitat is located or
those that may be affected by the designation of the habitat) prior to
completing the designation, and the fact of and finding of such
consultation shall be addressed in the final rulemaking for the
designation.''
Our Response: The suggested new Sec. 424.12(e) is not necessary
because section 4(b)(5)(A)(ii) of the Act requires the Secretary to
give actual notice of the proposed regulation (including the complete
text of the regulation) to the State agency in each State in which the
species is believed to occur, and to each county or equivalent
jurisdiction in which the species is believed to occur, and invite the
comment of such agency, and each such jurisdiction. Further, section
4(i) of the Act requires the Secretary to provide a written
justification for adopting regulations in conflict with the agency's
comments or for failing to adopt a regulation as requested in a State
petition. In addition to these requirements, the Services are committed
to continuing to work with the States early in the process to ensure
that we are using the best scientific data available.
(80) Comment: One State requested clarification on the application
of this regulation to critical habitat designations that are currently
under way, but not yet finalized.
Our Response: As indicated in DATES above, although effective 30
days from the date of publication, the revised version of Sec. 424.12
will apply only to rulemakings for which the proposed rule is published
after that date. Thus, the prior version of Sec. 424.12 will continue
to apply to any rulemakings for which a proposed rule was published
before that date. However, because many of the revisions merely codify
or explain our existing practices and interpretations, we may
immediately refer to and act consistent with the amended language of
Sec. 424.12 in final rules to which the prior version applies.
(81) Comment: Several commenters objected to the Services'
determination that a regulatory flexibility analysis is not required
for this regulation, stating the regulated community is affected by
this regulation.
Our Response: We respectfully disagree. We interpret the Regulatory
Flexibility Act, as amended, to require that Federal agencies evaluate
the potential incremental impacts of rulemaking only on those entities
directly regulated by the rulemaking itself and, therefore, not on
indirectly regulated entities. Recent case law supports this
interpretation (https://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf, pages 22-23). NMFS and FWS are the only entities
that are directly affected by this rule because we are the only
entities that designate critical habitat, and this rule pertains to the
procedures for carrying out those designations. No external entities,
including any small businesses, small organizations, or small
governments, will experience any direct economic impacts from this
rule.
We understand that there is considerable confusion as to how these
revisions to the regulation will change the process for designating
critical
[[Page 7429]]
habitat, with many thinking it will greatly expand our designations and
provide less clarity to the process. We went to great effort in our
proposal and further in this final rule to explain that revised
regulations will not result in any significant deviation from how the
two agencies have been designating critical habitat. Our intent is to
codify what we have been doing for many years and provide common-sense
revisions based on lessons learned and relevant case law. It is our
expectation that these revisions will allow us to develop more precise
and deliberate designations that can serve as more effective
conservation tools, focusing conservation resources where needed and
minimizing regulatory burdens where not necessary. As a consequence, we
find, as iterated above, that NMFS and FWS are the only entities
directly regulated by these revisions and that an RFA analysis is not
required.
(82) Comment: We received several comments that the proposed
revised regulations constituted a major Federal action because they
will result in significant socioeconomic consequences and these impacts
must be analyzed under the National Environmental Policy Act of 1969
(NEPA).
Our Response: As detailed in the REQUIRED DETERMINATIONS section
below, we have determined that this action qualifies for a categorical
exclusion under both DOI and NOAA governing procedures.
Final Amendments to Regulations Discussion of Changes to Part 424
This final rule revises 50 CFR 424.01, 424.02, and 424.12 (except
for paragraph (c)) 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 finalizing 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. As
indicated in DATES above, although effective 30 days from the date of
publication, the revised version of Sec. 424.12 will apply only to
rulemakings for which the proposed rule is published after that date.
Thus, the prior version of Sec. 424.12 will continue to apply to any
rulemakings for which a proposed rule was published before that date.
However, because many of the revisions merely codify or explain our
existing practices and interpretations, we may immediately refer to and
act consistent with the amended language of Sec. 424.12 in final rules
to which the prior version applies. Nothing in these final revised
regulations is intended to require that any previously completed
critical habitat designation must be reevaluated on this basis.
Section 424.01 Scope and Purpose
We are making minor revisions to this section to update language
and terminology. The first sentence in Sec. 424.01(a) is being 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.
Circumstances in which we determine critical habitat designation is 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 or track the statutory language.
Section 424.02 Definitions
This section of the regulations defines terms used in the context
of section 4 of the Act. We are making revisions to Sec. 424.02 to
update it to current formatting guidelines, to revise several
definitions related to critical habitat, to delete definitions that are
redundant with 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., Sec. 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 where these final
revisions differ from those set out in the proposed rule.
We note that, although revising the formatting of the section
requires that the entirety of the section be restated in the final-
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 amending 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 are revising the title of this entry to
``Conserve, conserving, and conservation,'' changing the order of the
words to conform to the statute. Additionally, we are revising 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 use and the use of all methods
and procedures that are necessary 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 Sec. 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 are deleting 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 define the previously undefined term ``geographical area
occupied by the species'' as: ``the geographical area 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
[[Page 7430]]
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 post-
listing determination of occupancy based on the currently known
distribution of the species in some circumstances. Although the D.C.
Circuit disagreed with the district court that the record contained
sufficient data to support the FWS' determination of occupancy in that
case, the D.C. Circuit did not express disagreement with (or otherwise
address) the district court's underlying conclusion that the Act allows
FWS to make a post-listing determination of occupancy if based on
adequate data. The FWS acknowledges that to make a post-listing
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 definition for ``geographical area
occupied by the species'' clarifies that the meaning of the term
``occupied'' includes specific 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 in some cases 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 determined presence) of eggs or
cysts of fairy shrimp or seed banks of plants constitute occupancy even
when mature individuals are not present.
We also finalize 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 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 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 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
[[Page 7431]]
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' 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'' clarifies that
features can be dynamic or ephemeral habitat characteristics. However,
an area within the geographical area occupied by the species,
containing 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 defined ``physical or biological features,'' we are also
removing the term ``primary constituent element'' and all references to
it from the regulations in Sec. 424.12. As with all other aspects of
these revisions, this will apply only to future critical habitat
designations and is further explained below in the discussion of the
changes to Sec. 424.12, where the term is currently used.
We are also revising the definition of ``special management
considerations or protection'' which is found in Sec. 424.02. Here we
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 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 considerations or protection 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 considerations or protection may be required. The
evaluation of whether features in an area may require special
management considerations 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 consideration or protection 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 requires
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 revising the regulatory definition of
``species'' at this time, we are using this notice to inform the public
of our interpretation of this phrase.'' We have always understood the
phrase ``interbreeds when mature'' to mean that a DPS consists of
members of the same species or subspecies that when in the wild 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 to 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.
Our intent was to explain how we have interpreted the phrase, but
by inadvertently including this interpretation in the regulatory
language of the proposed rule, we in fact were proposing to change the
definition of ``species'' to insert, ``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.'' We have removed the proposed language from the
definition of ``species'' in this final rule and left only the language
in this preamble. We also noticed that we inadvertently left out the
word ``Includes'' from the definition of ``species'' in our proposed
regulation. We have restored the word ``Includes'' in this final
regulation to match the definition of ``species'' found in our 1984
regulation. The Services are not substantively amending the definition
at this time.
Section 424.12 Criteria for Designating Critical Habitat
We are revising 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 language of the existing
regulation is ``shall be specified to the maximum extent prudent and
determinable at the time a species is proposed for listing.'' We added
the words ``proposed and finalized'' to be
[[Page 7432]]
consistent with the Act, which requires that critical habitat be
finalized concurrent with listing to the maximum extent prudent and
determinable. 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 requirement of the Act, which is
to propose and finalize a designation of critical habitat. The last two
sentences in paragraph (a) contain minor language changes to use the
active voice.
Paragraphs (a)(1) and (a)(1)(i) are not changed.
The first sentence of paragraph (a)(1)(ii) remains the same.
However, we add a second sentence to paragraph (a)(1)(ii) to provide
examples of factors that we may consider in determining whether a
designation would not be beneficial to the species. A designation may
not be beneficial and, therefore, not prudent, under certain
circumstances, including but not limited to: Whether the present or
threatened destruction, modification, or curtailment of a species'
habitat or range is not a threat to the species, or whether 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 to 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) remains unchanged from the current regulation,
and subparagraphs (i) and (ii) contain minor language changes to be
consistent with the language in the Act.
The Services are completely revising Sec. 424.12(b) of the current
regulations. For the reason explained below, we also remove the terms
``principal biological or physical constituent elements'' and ``primary
constituent elements'' from this section. These concepts are replaced
by the statutory term ``physical or biological features,'' which we
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 essential to the
conservation of species. In addition, current Sec. 424.12(b)
introduced the phrase ``primary constituent 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 and confusion during the designation
process.
The definition of ``physical or biological features,'' described
above, encompasses similar habitat characteristics as currently
described in Sec. 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. The Services still expect to provide a
comparable level of detail and specificity in defining and describing
physical or biological features essential to the conservation of a
species.
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 revised regulations emphasize that
the Secretary will 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, square yard, acre, or even square
mile independently meets the definition of ``critical habitat.'' Nor
will 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), and any
draft conservation strategy that may have been developed for the
species.
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 Sec. 424.12(b)(1)(i), the Secretary will identify the
geographical area occupied by the species using the new regulatory
definition of this term. Under Sec. 424.12(b)(1)(ii), the Secretary
will then identify those physical and biological features essential to
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 or fire 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
[[Page 7433]]
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 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 Sec. 424.12(b)(1)(iii), the Secretary will 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.
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, and 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 will 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 any
generalized conservation strategy that might be developed for the
species, Sec. 424.12(b)(1)(i) through (iv) will 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), which draws, as appropriate, from the existing designation.
More broadly, when applying Sec. 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 Services may evaluate areas needed for the conservation of
the species. The Services 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 Services 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 and any conservation strategy that
may have been developed for the species allows us to develop more
precise designations that can serve as more effective conservation
tools, focusing conservation resources where needed and minimizing
regulatory burdens where not necessary.
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
[[Page 7434]]
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 designated as
critical habitat if they are determined to be ``essential for the
conservation of the species.'' Section 424.12(b)(2) further describes
the factors the Services will 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 Sec. 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.'' This will be further informed by any generalized
conservation strategy, criteria, or outline that may have been
developed for the species to provide a substantive foundation for
identifying which features and specific areas are essential to the
conservation of the species and, as a result, the development of the
critical habitat designation.
Section 424.12(b)(2) subsumes and supersedes Sec. 424.12(e) of the
existing regulations. Existing section 424.12(e) 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 existing provision represents one reasonable
approach to giving meaning to the term ``essential'' as it relates to
unoccupied areas, the Services find, based on years of applying the
existing regulations, that 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. Indeed, there may be instances in which
particular unoccupied habitat is more important to the conservation of
the species than some occupied habitat.
For example, a species may occupy at low densities a large amount
of habitat that is marginal habitat for the species. That marginal
habitat may nonetheless meet the definition of ``critical habitat''
because the species has been extirpated from what historically was
superior habitat, and it is possible to recover the species if all of
the marginal habitat is thoroughly protected. However, a more certain
and efficient path to recovery may involve the protection of a
relatively small subset of the marginal habitat combined with
protection of some of the superior habitat (allowing for natural
expansion or artificial reintroduction). A variation of this scenario
would involve habitat that may currently be of high quality, but is
unlikely to remain that way due to the effects of climate change. Given
these scenarios, it will be useful for the Services to retain the
flexibility to consider various paths to recovery in considering what
areas to designate as critical habitat.
We conclude that a rigid step-wise approach, i.e., first
designating all occupied areas that meet the definition of ``critical
habitat'' (assuming that no unoccupied habitat is designated) and then,
only if that is not enough, designating essential unoccupied habitat,
does not necessarily serve the best conservation strategy for the
species and, in some circumstances, may result in a designation that is
geographically larger but less effective as a conservation tool.
Deleting current Sec. 424.12(e) will allow us to consider including
occupied and unoccupied areas in a critical habitat designation and to
follow any general conservation strategy, criteria, or outline for the
species that may be developed. We expect that the concurrent evaluation
of occupied and unoccupied areas for a critical habitat designation
will allow us to develop more precise designations that can serve as
more effective conservation tools, focusing conservation resources
where needed and minimizing regulatory burdens where not necessary.
In addition, 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. Therefore, we conclude that deleting
existing Sec. 424.12(e) restores the two parts of the statutory
definition (for occupied and unoccupied areas) to the relationship
envisioned by Congress.
As it is currently written, the provision in Sec. 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 find that 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). Thus, even keeping in mind that
``features'' may include features that support the occurrence of
ephemeral or dynamic habitat conditions, the Services may identify as
areas essential to the conservation of the species 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 essential features in other areas. Areas may develop
features over time, or, through special management considerations or
protection. The conservation value may be influenced by the level of
effort needed to manage degraded habitat to the point where it could
support the listed species. Under Sec. 424.12(b)(2), the Services will
identify unoccupied areas, either with the features or not, that are
essential for the conservation of a species. This section is intended
to provide a flexible, rather than prescriptive, standard to allow the
Services to tailor the inquiry about what
[[Page 7435]]
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 following any generalized conservation strategy that might
be developed for the species. 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
determine 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 the effects of 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 Sec. 424.12(c) resulted from a recent separate rulemaking
(77 FR 25611; May 1, 2012); it is not addressed in this rulemaking.
Section 424.12(d) includes minor language changes and removes the
example as it is not necessary for the text of the regulation.
We are removing current Sec. 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--is captured in revised Sec. 424.12(b)(2).
We are redesignating the current Sec. 424.12(f) as Sec. 424.12(e)
and adding 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 Sec. 424.12(e) provides 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 Sec. 424.12(f) in the existing regulations, although the
Services have changed the passive voice to the active voice.
The new second sentence codifies 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 be designated concurrently with listing. See Public Law 97-304,
96 Stat. 1411, sec, 2(b)(4) (Oct. 13, 1982). To reduce potential
confusion, the revised regulations 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 to 1982. 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
[[Page 7436]]
``[a]ny petition'' and ``any regulation''). Thus, the special
procedures for finalizing proposals to designate critical habitat for
species listed prior to 1982 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 managed 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 are redesignating current Sec. 424.12(g) as Sec. 424.12(f)
with minor language changes.
We are redesignating current Sec. 424.12(h) as Sec. 424.12(g)
with minor language changes.
We are adding new Sec. 424.12(h). This paragraph reflects 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). Section
424.12(h) codifies 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 resulting exemption 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 results 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 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 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, describe in
Sec. 424.12(h) some factors that will 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. FWS will defer to our
Guidelines for Coordination on Integrated Natural Resource Management
Plans in evaluating these plans.
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 compliant or operational INRMP must
reflect the mutual agreement of the involved agencies on the
conservation, protection, and management of fish and wildlife
resources. In other words, FWS must agree with 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 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 compliant or
operation. 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.
New Sec. 424.12(h) specifies that an INRMP must be compliant or
operational 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 may evaluate it following the
guidelines set forth in our Policy on Exclusions from Critical Habitat
under Section 4(b)(2) of the Act.
Existing Sec. 424.19 results from a recent, separate rulemaking
(78 FR 53058), and is not addressed in this rulemaking.
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.
[[Page 7437]]
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 certified that the proposed
rule to implement these changes to the 50 CFR part 424 regulations
would not have a significant economic impact on a substantial number of
small entities (79 FR 27066, at 27075). Several commenters objected to
the Services' determination that a regulatory flexibility analysis is
not required for this regulation, stating the regulated community is
affected by this regulation. We explained that NMFS and FWS are the
only entities that are directly affected by this rule because we are
the only entities that designate critical habitat, and this rule
pertains to the procedures for carrying out those designations (See our
response to Comment 81). No external entities, including any small
businesses, small organizations, or small governments, will experience
any direct economic impacts from this rule. No information received
during the public comment period leads us to change our analysis.
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 regulations 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 these regulations 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
regulations will not place additional requirements on any city, county,
or other local municipalities.
(b) These regulations 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. These
regulations will impose no obligations on State, local, or tribal
governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, these regulations will
not have significant takings implications. These regulations will not
pertain to ``taking'' of private property interests, nor will they
directly affect private property. A takings implication assessment is
not required because these regulations (1) will not effectively compel
a property owner to suffer a physical invasion of property and (2) will
not deny all economically beneficial or productive use of the land or
aquatic resources. These regulations will substantially advance a
legitimate government interest (conservation and recovery of endangered
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 Executive Order 13132, we have considered
whether these regulations will have significant Federalism effects and
have determined that a Federalism assessment is not required. These
regulations pertain only to determinations to designate critical
habitat under section 4 of the Act, and will not have substantial
direct effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
These 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 regulations will 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 Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' the Department of the
Interior's manual at 512 DM 2, and the Department of Commerce (DOC)
Tribal Consultation and Coordination Policy''/(May 21, 2013), DOC
Departmental Administrative Order (DAO) 218-8, and NOAA Administrative
Order (NAO) 218-8 (April 2012), we have considered possible effects of
this final rule on federally recognized Indian Tribes. Following an
exchange of information with tribal representatives, we have determined
that this rule, which modifies the general framework for designating
critical habitat under the ESA, does not have tribal implications as
defined in Executive Order 13175. We will continue to collaborate/
coordinate with tribes on issues related to federally listed species
and their habitats and work with them as appropriate as we develop
particular critical habitat designations, including consideration of
potential exclusion on the basis of tribal interests. See Joint
Secretarial Order 3206 (``American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act'', June 5,
1997).
Paperwork Reduction Act
This rule does not contain any new collections of information that
require approval by the OMB under the Paperwork Reduction Act. This
rule will 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 have analyzed these 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.
Following a review of the changes to the regulations at 50 CFR
424.01, 424.02, and 424.12 and our requirements under NEPA, we find
that the categorical exclusion found at 43 CFR 46.210(i) applies to
these regulation changes. At 43 CFR 46.210(i), the Department of the
Interior has found that the following category of actions
[[Page 7438]]
would not individually or cumulatively have a significant effect on the
human environment and are, therefore, categorically excluded from the
requirement for completion of an environmental assessment or
environmental impact statement:
``Policies, directives, regulations, and guidelines: that are of an
administrative, financial, legal, technical, or procedural nature.''
NOAA Administrative Order 216-6 contains a substantively identical
exclusion for ``policy directives, regulations and guidelines of an
administrative, financial, legal, technical or procedural nature.''
Sec. 6.03c.3(i).
At the time DOI's categorical exclusion was promulgated, there was
no preamble language that would assist in interpreting what kinds of
actions fall within the categorical exclusion. However, in 2008, the
preamble for a language correction to this categorical exclusion gave
as an example of an action that would fall within the exclusion the
issuance of guidance to applicants for transferring funds
electronically to the Federal Government. In addition, examples of
recent Federal Register notices invoking this categorical exclusion
include a final rule that established the timing requirements for the
submission of a Site Assessment Plan or General Activities Plan for a
renewable energy project on the Outer Continental Shelf (78 FR 12676;
February 26, 2013), a final rule that established limited liability for
Noncoal Reclamation by Certified States and Indian Tribes (78 FR 8822;
February 6, 2013), and a final rule changing the tenure of eagle
permits (77 FR 22267; April 13, 2012). These regulations fell within
the categorical exclusion because they did not result in any
substantive change. In no way did they alter the standards for, or
outcome of, any physical or regulatory Federal actions.
The changes to the critical habitat designation criteria are
similar to these examples of actions that are fundamentally
administrative, technical, and procedural in nature. The changes to the
regulations at 50 CFR 424.01, 424.02, and 424.12 (except for paragraph
(c)) clarify the procedures and criteria used for designating critical
habitat, addressing in particular several key issues that have been
subject to frequent litigation. In addition, the regulation revisions
to 50 CFR 424.01, 424.02, and 424.12 better track the statutory
language of the Act and make transparent practices the Services follow
as a result of case law. The Services also make minor wording and
formatting revisions throughout the three sections to reflect plain
language standards. The regulation revision as a whole carries out the
requirements of Executive Order 13563 because, in this rule, the
Services have analyzed existing rules retrospectively ``to make the
agencies' regulatory program more effective or less burdensome in
achieving the regulatory objectives.'' None of the changes to the text
of the regulation will result in changes to the opportunity for public
involvement in any critical habitat designations.
We also considered whether any ``extraordinary circumstances''
apply to this situation, such that the DOI categorical exclusion would
not apply. See 43 CFR 46.215 (``Categorical Exclusions: Extraordinary
Circumstances''). We determined that no extraordinary circumstances
apply. Although the final regulations would revise the implementing
regulations for section 4 of the Act, the effects of these proposed
changes would not ``have significant impacts on species listed, or
proposed to be listed, on the List of Endangered or Threatened Species
or have significant impacts on designated Critical Habitat for these
species,'' as nothing in the revised regulations is intended to require
that any previously listed species or completed critical habitat
designation be reevaluated on this basis. Furthermore, the revised
regulations do not ``[e]stablish a precedent for future action or
represent a decision in principle about future actions with potentially
significant environmental effects'' (43 CFR 46.215(e)). None of the
extraordinary circumstances in 43 CFR 46.215(a) through (l) apply to
the revised regulations in 50 CFR 424.01, 424.02, or 424.12.
Nor would the final regulations trigger any of the extraordinary
circumstances of NAO 216-6. This rule does not involve a geographic
area with unique characteristics, is not the subject of public
controversy based on potential environmental consequences, will not
result in uncertain environmental impacts or unique or unknown risks,
does not establish a precedent or decision in principle about future
proposals, will not have significant cumulative impacts, and will not
have any adverse effects upon endangered or threatened species or their
habitats. Sec. 5.05c.
We completed an Environmental Action Statement for the Categorical
Exclusion for the revised regulations in 50 CFR 424.01, 424.02, and
424.12.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. These regulations 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.
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).
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.
Regulation Promulgation
Accordingly, we are amending part 424, subchapter A of chapter IV,
title 50 of the Code of Federal Regulations, 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
species 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 species 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
[[Page 7439]]
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 Sec. 402.02 of this chapter. 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 that 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. Includes any species or subspecies of fish, wildlife, or
plant, and any distinct population segment of any vertebrate species
that interbreeds 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 probable economic, national security, and
other relevant impacts of making such a designation in accordance with
Sec. 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 not be
beneficial, the factors the Services may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species, or whether any 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 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 based on the best available scientific data.
* * * * *
(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
[[Page 7440]]
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 a compliant or
operational 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: January 29, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
Dated: January 29, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2016-02680 Filed 2-10-16; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P