7214 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

Dated: January 25, 2016. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart D—Arizona 

§ 52.111 [Removed] 

■ 2. Remove § 52.111. 

■ 3. Section 52.120 is amended by: 

■ a. Adding paragraphs (b)(1)(i), 

(c)(3)(ii) introductory text and 

(c)(3)(ii)(A), and (c)(6)(i) introductory 

text and (c)(6)(i)(A); 

■ b. Revising paragraph (c)(19); 

■ c. Adding paragraphs (c)(20)(i) 

introductory text and (c)(20)(i)(A), 

(c)(27)(i)(D), and (c)(29)(i)(B); 

■ d. Removing and reserving paragraph 

(c)(30); 

■ e. Adding paragraphs (c)(43)(i)(D) and 

(c)(45)(i)(E); 

■ f. Revising paragraph (c)(50)(ii)(B); 

■ g. Adding paragraphs (c)(50)(ii)(D) 

and (c)(54)(i)(I); and 

■ h. Removing and reserving paragraph 

(c)(120). 

The additions and revisions read as 

follows: 

§ 52.120 Identification of plan. 

* * * * * 

(b) * * * 

(1) Arizona State Department of 

Health. 

(i) Previously approved on May 31, 

1972 in paragraph (b) of this section and 

now deleted without replacement: 

Arizona Revised Statutes section 36– 

1700 (‘‘Declaration of Policy’’) 

(c) * * * 

(3) * * * 

(ii) Arizona State Department of 

Health. 

(A) Previously approved on July 27, 

1972 in paragraph (c)(3) of this section 

and now deleted without replacement: 

Chapter 2 (‘‘Legal Authority’’), Section 

2.9 (‘‘Jurisdiction over Indian lands’’); 

Arizona Revised Statutes sections 36– 

1700 (‘‘Declaration of Policy’’) and 36– 

1801 (‘‘Jurisdiction over Indian Lands’’); 

and Arizona State Department of Health, 

Rules and Regulations for Air Pollution 

Control 7–1–4.3 (‘‘Sulfite Pulp Mills’’) 

and 7–1–9.1 (‘‘Policy and Legal 

Authority’’). 

* * * * * 

(6) * * * 

(i) Arizona State Department of 

Health. 

(A) Previously approved on July 31, 

1978 in paragraph (c)(6) of this section 

and now deleted without replacement: 

Arizona Air Pollution Control 

Regulation 7–1–4.3 (R9–3–403) (‘‘Sulfur 

Emissions: Sulfite Pulp Mills’’). 

* * * * * 

(19) Arizona Air Pollution Control 

Regulations, submitted on September 

16, 1975: R9–3–102 (Definitions), R9–3– 

108 (Test Methods and Procedures), R9– 

3–302 (Particulate Emissions: Fugitive 

Dust), R9–3–303 (Particulate Emissions: 

Incineration), R9–3–304 (Particulate 

Emissions: Wood Waste Burners), R9–3– 

305 (Particulate Emissions: Fuel 

Burning Equipment), R9–3–307 

(Particulate Emissions: Portland Cement 

Plants); and R9–3–308 (Particulate 

Emissions: Heater-Planers), submitted 

on September 16, 1975. 

(20) * * * 

(i) Arizona State Department of 

Health. 

(A) Previously approved on August 4, 

1978 in paragraph (c)(20) of this section 

and now deleted without replacement: 

Arizona Air Pollution Control 

Regulation R9–3–1001 (‘‘Policy and 

Legal Authority’’). 

* * * * * 

(27) * * * 

(i) * * * 

(D) Previously approved on April 23, 

1982, in paragraph (c)(27)(i)(B) of this 

section and now deleted without 

replacement: R9–3–511 (Paragraph B), 

R9–3–512 (Paragraph B), R9–3–513 

(Paragraphs B and C), and R9–3–517 

(Paragraphs B and C). 

* * * * * 

(29) * * * 

(i) * * * 

(B) Previously approved on April 23, 

1982, in paragraph (c)(29)(i)(A) of this 

section and now deleted without 

replacement: Arizona Testing Manual 

for Air Pollutant Emissions, Sections 3.0 

and 4.0. 

* * * * * 

(43) * * * 

(i) * * * 

(D) Previously approved on April 23, 

1982, in paragraph (c)(43)(i)(B) of this 

section and now deleted without 

replacement: R9–3–511 (Paragraph A.1 

to A.5), R9–3–512 (Paragraph A.1 to 

A.5), R9–3–513 (Paragraph A.1 to A.5), 

and R9–3–517 (Paragraph A.1 to A.5). 

* * * * * 

(45) * * * 

(i) * * * 

(E) Previously approved on April 23, 

1982, in paragraph (c)(45)(i)(B) of this 

section and now deleted without 

replacement: R9–3–511 (Paragraph A); 

R9–3–512 (Paragraph A); R9–3–513 

(Paragraph A); R9–3–517 (Paragraph A); 

Section 3, Method 11; Section 3.16, 

Method 16; Section 3.19, Method 19; 

and Section 3.20, Method 20. 

* * * * * 

(50) * * * 

(ii) * * * 

(B) Arizona State: Chapter 14, Air 

Pollution, Article 1. State Air Pollution 

Control, Sections 36–1700 to 36–1702, 

36–1704 to 36–1706, 36–1707 to 36– 

1707.06, 36–1708, 36–1720.01, and 36– 

1751 to 36–1753. 

* * * * * 

(D) Previously approved on June 18, 

1982, in paragraph (c)(50)(ii)(B) of this 

section and now deleted without 

replacement: Arizona Revised Statutes 

section 36–1700. 

* * * * * 

(54) * * * 

(i) * * * 

(I) Previously approved on September 

28, 1982, in paragraph (c)(54)(i)(C) of 

this section and now deleted without 

replacement: R9–3–511 (Paragraph A to 

A.1 and A.2), R9–3–513 (Paragraph A to 

A.1 and A.2), and R9–3–517 (Paragraph 

A to A.1). 

* * * * * 

[FR Doc. 2016–02714 Filed 2–10–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 402 

[Docket No. FWS–R9–ES–2011–0072; 

Docket No. 120106026–4999–03] 

RIN 1018–AX88; 0648–BB80 

Interagency Cooperation—Endangered 

Species Act of 1973, as Amended; 

Definition of Destruction or Adverse 

Modification of Critical Habitat 

AGENCIES: U.S. Fish and Wildlife 

Service, Interior; National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (FWS) and the National Marine 

Fisheries Service (NMFS), collectively 

referred to as the ‘‘Services’’ or ‘‘we,’’ 

revise a regulatory definition that is 


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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7215 

integral to our implementation of the 

Endangered Species Act of 1973, as 

amended (Act or ESA). The Act requires 

Federal agencies, in consultation with 

and with the assistance of the Services, 

to insure that their actions are not likely 

to jeopardize the continued existence of 

endangered or threatened species or 

result in the destruction or adverse 

modification of critical habitat of such 

species. On May 12, 2014, we proposed 

to revise the definition for ‘‘destruction 

or adverse modification’’ in our 

regulations as this definition had been 

found to be invalid by two circuit 

courts. In response to public comments 

received on our proposed rule, we have 

made minor revisions to the definition. 

This rule responds to section 6 of 

Executive Order 13563 (January 18, 

2011), which directs agencies to analyze 

their existing regulations and, among 

other things, modify or streamline them 

in accordance with what has been 

learned. 

DATES: Effective March 14, 2016. 

ADDRESSES: Supplementary information 

used in the development of this rule, 

including the public comments received 

and the environmental assessment may 

be viewed online at http://

www.regulations.gov at Docket No. 

FWS–R9–ES–2011–0072 or at Docket 

No. NOAA–NMFS–2014–0093. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Schultz, National Marine 

Fisheries Service, Office of Protected 

Resources, 1315 East-West Highway, 

Silver Spring, MD 20910; telephone 

301/427–8443; facsimile 301/713–0376; 

or Craig Aubrey, U.S. Fish and Wildlife 

Service, Division of Environmental 

Review, 5275 Leesburg Pike, Falls 

Church, VA 22041; telephone 703/358– 

2171; facsimile 703/358–1735. Persons 

who use a Telecommunications Device 

for the Deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339, 24 hours a day, and 7 

days a week. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 7(a)(2) of the Act requires 

Federal agencies, in consultation with 

and with the assistance of the 

Secretaries of the Interior and 

Commerce, to insure that their actions 

are not likely to jeopardize the 

continued existence of endangered or 

threatened species or result in the 

destruction or adverse modification of 

critical habitat of such species (16 

U.S.C. 1536(a)(2)). The Act defines 

critical habitat as the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, on which are found 

those physical or biological features (1) 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection, as well as specific areas 

outside the geographical area occupied 

by the species at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species (16 U.S.C. 1532(5)(A)). 

Conservation means to use and the use 

of all methods and procedures that are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary (16 U.S.C. 1532(3)). The Act 

does not define ‘‘destruction or adverse 

modification.’’ The Services carry out 

the Act via regulations in title 50 of the 

Code of Federal Regulations (CFR). 

In 1978, the Services promulgated 

regulations governing interagency 

cooperation under section 7(a)(2) of the 

Act that defined ‘‘destruction or adverse 

modification’’ in part as a ‘‘direct or 

indirect alteration of critical habitat 

which appreciably diminishes the value 

of that habitat for survival and recovery 

of a listed species. Such alterations 

include but are not limited to those 

diminishing the requirements for 

survival and recovery . . . ’’ (43 FR 870, 

January 4, 1978). In 1986, the Services 

amended the definition to read ‘‘a direct 

or indirect alteration that appreciably 

diminishes the value of critical habitat 

for both the survival and recovery of a 

listed species. Such alterations include, 

but are not limited to, alterations 

adversely modifying any of those 

physical or biological features that were 

the basis for determining the habitat to 

be critical’’ (51 FR 19926, June 3, 1986; 

codified at 50 CFR 402.02). In 1998, the 

Services provided a clarification of 

usage of the term ‘‘appreciably diminish 

the value’’ in the Endangered Species 

Consultation Handbook: Procedures for 

Conducting Consultation and 

Conference Activities Under Section 7 

of the Act (i.e., the Handbook; http://

http://www.fws.gov/endangered/esalibrary/pdf/esa_section7_handbook.pdf) 

as follows: ‘‘to considerably reduce the 

capability of designated or proposed 

critical habitat to satisfy requirements 

essential to both the survival and 

recovery of a listed species.’’ 

In 2001, the Fifth Circuit Court of 

Appeals reviewed the 1986 definition 

and found it exceeded the Service’s 

discretion by requiring an action to 

appreciably diminish a species’ survival 

and recovery to trigger a finding of 

‘‘destruction or adverse modification.’’ 

Sierra Club v. U.S. Fish and Wildlife 

Service, 245 F.3d 434 (5th Cir. 2001). As 

stated in the decision (Sierra Club, at 

441–42 (citations omitted) (emphasis in 

original)): 

The ESA defines ‘critical habitat’ as areas 

which are ‘essential to the conservation’ of 

listed species. ‘Conservation’ is a much 

broader concept than mere survival. The 

ESA’s definition of ‘conservation’ speaks to 

the recovery of a threatened or endangered 

species. Indeed, in a different section of the 

ESA, the statute distinguishes between 

‘conservation’ and ‘survival.’ Requiring 

consultation only where an action affects the 

value of critical habitat to both the recovery 

and survival of a species imposes a higher 

threshold than the statutory language 

permits. 

In 2004, the Ninth Circuit Court of 

Appeals also reviewed the 1986 

definition and found portions of the 

definition to be facially invalid. Gifford 

Pinchot Task Force v. U.S. Fish and 

Wildlife Service, 378 F.3d 1059 (9th Cir. 

2004). The Ninth Circuit, following 

similar reasoning set out in the Sierra 

Club decision, determined that Congress 

viewed conservation and survival as 

‘‘distinct, though complementary, goals, 

and the requirement to preserve critical 

habitat is designed to promote both 

conservation and survival.’’ Gifford 

Pinchot Task Force, at 1070. 

Specifically, the court found that ‘‘the 

purpose of establishing ‘critical habitat’ 

is for the government to designate 

habitat that is not only necessary for the 

species’ survival but also essential for 

the species’ recovery.’’ Id. ‘‘Congress 

said that ‘destruction or adverse 

modification’ could occur when 

sufficient critical habitat is lost so as to 

threaten a species’ recovery even if there 

remains sufficient critical habitat for the 

species’ survival.’’ Id. 

After the Ninth Circuit’s decision, the 

Services each issued guidance to 

discontinue the use of the 1986 

definition (FWS Acting Director 

Marshall Jones Memo to Regional 

Directors, ‘‘Application of the 

‘Destruction or Adverse Modification’ 

Standard under Section 7(a)(2) of the 

Act, 2004;’’ NMFS Assistant 

Administrator William T. Hogarth 

Memo to Regional Administrators, 

‘‘Application of the ‘Destruction or 

Adverse Modification’ Standard under 

Section 7(a)(2) of the Act, 2005’’). 

Specifically, in evaluating an action’s 

effects on critical habitat as part of 

interagency consultation, the Services 

began directly applying the definition of 

‘‘conservation’’ as set out in the Act. 

The guidance instructs the Services’ 

biologists, after examining the baseline 

and the effects of the action, to 

determine whether critical habitat 


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7216 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

would remain functional (or retain the 

current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species, upon 

implementation of the Federal action 

under consultation. ‘‘Primary 

constituent elements’’ was a term 

introduced in the critical habitat 

designation regulations (50 CFR 424.12) 

to describe aspects of ‘‘physical or 

biological features,’’ which are 

referenced in the statutory definition of 

‘‘critical habitat’’; the Services have 

proposed to remove the term ‘‘primary 

constituent elements’’ and return to the 

statutory term ‘‘physical or biological 

features.’’ See 79 FR 27066, May 12, 

2014. 

On May 12, 2014, the Services 

proposed the following regulatory 

definition to address the relevant case 

law and to formalize the Services’ 

guidance: ‘‘Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the conservation value of critical habitat 

for listed species. Such alterations may 

include, but are not limited to, effects 

that preclude or significantly delay the 

development of the physical or 

biological features that support the lifehistory needs of the species for 

recovery.’’ See 79 FR 27060, May 12, 

2014. In the preamble to the proposed 

rule, we explained that the proposed 

definition was intended to align with 

the conservation purposes of the Act. 

The first sentence captured the role that 

critical habitat should play for the 

recovery of listed species. The second 

sentence acknowledged that some 

physical or biological features may not 

be present or may be present in 

suboptimal quantity or quality at the 

time of designation. 

We solicited comments on the 

proposed rule for a total of 150 days. We 

received 176 comments. 

Summary of Changes From the 

Proposed Definition 

This final rule aligns the regulatory 

definition of ‘‘destruction or adverse 

modification’’ with the conservation 

purposes of the Act and the Act’s 

definition of ‘‘critical habitat.’’ It 

continues to focus on the role that 

critical habitat plays for the 

conservation of listed species and 

acknowledges that the development of 

physical and biological features may be 

necessary to enable the critical habitat 

to support the species’ recovery. Though 

we made minor changes to clarify our 

intent, these changes do not alter the 

overall meaning of the proposed 

definition. We do not expect this final 

rule to alter the section 7(a)(2) 

consultation process from our current 

practice, and previously completed 

biological opinions do not need to be 

reevaluated in light of this rule. 

In our final definition, to avoid 

unnecessary confusion and more closely 

track the statutory definition of critical 

habitat, we replaced two ‘‘terms of art’’ 

introduced in the proposed definition 

with language that explained the 

intended meanings. In addition, we 

modified the second sentence of the 

definition to avoid unintentionally 

giving the impression that the proposed 

definition had a narrower focus than the 

1986 definition. 

First, as described in detail under the 

Summary of Comments section below, 

many commenters suggested that we 

replace two terms, ‘‘conservation value’’ 

and ‘‘life-history needs,’’ in the 

proposed definition with simpler 

language more clearly conveying their 

intended meanings. After reviewing the 

comments, we agreed that use of these 

terms was unnecessary and led to 

unintended confusion. We modified the 

proposed definition accordingly. 

Specifically, we replaced ‘‘conservation 

value of critical habitat for listed 

species’’ with ‘‘the value of critical 

habitat for the conservation of a listed 

species.’’ We also replaced ‘‘physical or 

biological features that support lifehistory needs of the species for 

recovery’’ in the second sentence with 

‘‘physical or biological features essential 

to the conservation of a listed species.’’ 

These revisions avoid introducing 

previously undefined terms without 

changing the meaning of the proposed 

definition. Furthermore, these revisions 

better align with the conservation 

purposes of the Act, by using language 

from the statutory definition of ‘‘critical 

habitat’’ (i.e., ‘‘physical or biological 

features essential to the conservation of 

the species’’). 

Second, commenters also expressed 

concern that, in their perception, the 

Services proposed a significant change 

in practice by appearing to focus the 

definition on the preclusion or delay of 

the development of physical or 

biological features, to the exclusion of 

the alteration of existing features. We 

did not intend the proposed definition 

to signal such a shift in focus. Rather, 

we believed the first sentence of the 

proposed definition captured both types 

of alteration: those of existing features 

as well as those that would preclude or 

delay future development of such 

features. We intended the second 

sentence of the proposed definition to 

merely emphasize this latter type of 

alteration because of its less obvious 

nature. Because the second sentence of 

the 1986 definition expressly refers to 

alterations adversely modifying physical 

or biological features and to avoid any 

perceived shift in focus, we revised the 

proposed definition to explicitly 

reference alterations affecting the 

physical or biological features essential 

to the conservation of a species, as well 

as those that preclude or significantly 

delay development of such features. 

Final Definition 

After considering public comments, 

Congressional intent, relevant case law, 

and the Services’ collective experience 

in applying the ‘‘destruction or adverse 

modification’’ standard over the last 

three decades, we finalize the following 

regulatory definition: Destruction or 

adverse modification means a direct or 

indirect alteration that appreciably 

diminishes the value of critical habitat 

for the conservation of a listed species. 

Such alterations may include, but are 

not limited to, those that alter the 

physical or biological features essential 

to the conservation of a species or that 

preclude or significantly delay 

development of such features. 

As described in the preamble to the 

proposed rule, the ‘‘destruction or 

adverse modification’’ definition 

focuses on how Federal actions affect 

the quantity and quality of the physical 

or biological features in the designated 

critical habitat for a listed species and, 

especially in the case of unoccupied 

habitat, on any impacts to the critical 

habitat itself. Specifically, the Services 

will generally conclude that a Federal 

action is likely to ‘‘destroy or adversely 

modify’’ designated critical habitat if the 

action results in an alteration of the 

quantity or quality of the essential 

physical or biological features of 

designated critical habitat, or that 

precludes or significantly delays the 

capacity of that habitat to develop those 

features over time, and if the effect of 

the alteration is to appreciably diminish 

the value of critical habitat for the 

conservation of the species. If the 

Services make a destruction or adverse 

modification determination, they will 

develop reasonable and prudent 

alternatives on a case by case basis and 

based on the best scientific and 

commercial data available. 

As also described in the preamble to 

the proposed rule, the Services may 

consider other kinds of impacts to 

designated critical habitat. For example, 

some areas that are currently in a 

degraded condition may have been 

designated as critical habitat for their 

potential to develop or improve and 

eventually provide the needed 

ecological functions to support species’ 

recovery. Under these circumstances, 

the Services generally conclude that an 


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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7217 

action is likely to ‘‘destroy or adversely 

modify’’ the designated critical habitat if 

the action alters it to prevent it from 

improving over time relative to its preaction condition. It is important to note 

that the ‘‘destruction or adverse 

modification’’ definition applies to all 

physical or biological features; as 

described in the proposed revision to 

the current definition of ‘‘physical or 

biological features’’ (50 CFR 424.12), 

‘‘[f]eatures may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions’’ (79 FR 

27066, May 12, 2014). 

Summary of Comments 

In our proposed rule (79 FR 27060, 

May 12, 2014), we requested written 

comments from the public for 60 days, 

ending July 11, 2014. We received 

several requests to extend the public 

comment period, and we subsequently 

published a notice (79 FR 36284, June 

26, 2014) extending the comment period 

by an additional 90 days, through 

October 9, 2014. 

During the public comment period, 

we received approximately 176 

comments. We received comments from 

Tribes, State and local governments, 

industry, conservation organizations, 

private citizens, and others. 

We considered all substantive 

information provided during the 

comment period and, as appropriate, 

incorporated suggested revisions into 

this final rule. Here, we summarize the 

comments, grouped by issue, and 

provide our responses. 

Comment on ‘‘conservation’’ versus 

‘‘recovery’’: A few commenters 

suggested that conservation is not 

recovery. One commenter suggested that 

Congress intended critical habitat to 

mean areas that are essential to the 

continued existence of the species, i.e., 

its survival. 

Our Response: We disagree with the 

commenter that ‘‘conservation’’ means 

‘‘survival.’’ Instead, we agree with the 

courts that Congress intended critical 

habitat to focus on conservation, which 

addresses more than mere survival. 

While we recognize the distinction 

between ‘‘conservation’’ and 

‘‘recovery,’’ we also acknowledge that 

the courts and the Services often use the 

terms synonymously. 

The statutory definition of critical 

habitat includes the phrase ‘‘essential to 

[or for] the conservation of the species’’ 

twice; it does not include the word 

‘‘survival’’ or the phrase, ‘‘the continued 

existence of the species’’ (16 U.S.C. 

1532(5)(A)). Conservation means to use 

and the use of all methods and 

procedures that are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary (16 U.S.C. 

1532(3)). The statutory definition does 

not include the word ‘‘survival’’ or the 

phrase, ‘‘the continued existence of the 

species.’’ This does not appear to be an 

oversight. Congress used the word 

‘‘survival’’ in other places in the Act; 

they also used the phrase ‘‘continued 

existence of a species’’ elsewhere and 

specifically in reference to the jeopardy 

standard under section 7(a)(2) of the 

Act. 

In 2001, the Fifth Circuit concluded 

that ‘‘ ‘conservation’ is a much broader 

concept than mere survival’’ and 

‘‘speaks to the recovery’’ of species: 

‘‘Indeed, in a different section of the 

ESA, the statute distinguishes between 

‘conservation’ and ‘survival.’ ’’ Sierra 

Club, at 441–42. In 2004, the Ninth 

Circuit added, ‘‘Congress said that 

‘destruction or adverse modification’ 

could occur when sufficient critical 

habitat is lost so as to threaten a species’ 

recovery even if there remains sufficient 

critical habitat for the species’ survival.’’ 

Further, the Ninth Circuit indicated that 

the 1986 definition ‘‘fails to provide 

protection of habitat when necessary 

only for species’ recovery.’’ Gifford 

Pinchot Task Force, at 1070. 

Throughout these decisions, the courts 

used the words ‘‘recovery’’ and 

‘‘conservation’’ interchangeably. 

The Services view ‘‘conservation’’ as 

the process used to achieve ‘‘recovery,’’ 

that is, the improvement in the status of 

listed species to the point at which 

listing is no longer appropriate under 

the criteria set out in section 4(a)(1) of 

the Act (50 CFR 402.02). In the 

proposed regulatory definition of 

‘‘conserve, conserving, and 

conservation,’’ the Services included the 

phrase ‘‘i.e., the species is recovered’’ to 

clarify the link between conservation 

and recovery of the species. See 79 FR 

27066, May 12, 2014 (proposing 

revisions to 50 CFR 424.02). Despite the 

distinction between the two terms, we 

often use the terms interchangeably in 

practice. We believe that this is 

consistent with Congress’s intent for 

‘‘conservation’’ to encompass the 

procedures necessary to achieve 

‘‘recovery.’’ 

Comments on ‘‘appreciably 

diminish’’: We received 63 comments 

regarding our use and explanation of the 

term ‘‘appreciably diminish.’’ Many 

commenters considered the explanation 

of the term vague, confusing, and giving 

too much discretion to the Services. 

Some suggested that ‘‘appreciably 

diminish’’ should apply only to the 

reduction in quality, significance, 

magnitude, or worth of the physical or 

biological features that were the basis 

for determining the habitat to be critical. 

Others suggested alternatives to 

‘‘appreciably,’’ including significantly, 

measurably, and considerably. Several 

commenters suggested simply removing 

the words ‘‘both the survival and’’ from 

the clarification of usage in the Services’ 

Handbook. Some commenters believed 

the Services were ‘‘lowering the bar,’’ 

while others felt that the Services were 

‘‘raising the bar’’ with the definition. 

Commenters disagreed on whether the 

Services should consider every 

perceptible diminishment to critical 

habitat to be destruction or adverse 

modification. 

Our Response: In the proposed rule, 

the Services requested comments on 

whether the phrase ‘‘appreciably 

diminish’’ is clear and can be applied 

consistently across consultations. 

Though this phrase has been part of the 

definition of ‘‘destruction or adverse 

modification’’ since 1978, we invited 

the public to suggest any alternative 

phrases that might improve clarity and 

consistency. Though several 

commenters responded that phrase is 

unclear or unable to be consistently 

applied, they did not present clearer 

alternatives or examples of inconsistent 

application. 

The courts have not identified 

problems with the clarity or consistent 

application of the ‘‘appreciably 

diminish’’ standard. Though the Fifth 

(2001) and Ninth Circuits (2004) 

invalidated the existing regulatory 

definition because it included the 

phrase ‘‘both the survival and 

recovery,’’ they did not comment 

unfavorably on the word ‘‘appreciably’’ 

or the term ‘‘appreciably diminish.’’ In 

2010, the Ninth Circuit expressly noted 

that its decision in Gifford Pinchot ‘‘did 

not alter the rule that an ‘adverse 

modification’ occurs only when there is 

‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat.’ ’’ Butte Environmental 

Council v. U.S. Army Corps of 

Engineers, 620 F.3d 936, 948 (9th Cir. 

2010) (emphasis in original). 

Commenters generally agreed that 

‘‘diminish’’ means to reduce; however, 

several commenters disagreed with our 

use of the word ‘‘appreciably’’ and 

suggested we use alternative qualifiers 

(i.e., significantly, measurably, or 

considerably). In the preamble of the 

proposed rule, we discussed the word 

‘‘appreciably,’’ as well as the suggested 

alternatives, which are similar in 

meaning to the word ‘‘appreciably’’ but 

also have multiple possible meanings. 

In light of all the comments received, 

our review of case law, and our previous 

experience with the term, we have 


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concluded that no alternative has a 

sufficiently clear meaning to warrant 

changing this longstanding term in the 

regulation. Without a clearly superior 

alternative, the Services retain the 

phrase ‘‘appreciably diminish’’ in the 

definition of ‘‘destruction or adverse 

modification.’’ 

In the preamble to the proposed rule, 

we further clarified the meaning of 

‘‘appreciably diminish’’ by explaining 

that the relevant question is whether the 

reduction has some relevance because 

we can recognize or grasp its quality, 

significance, magnitude, or worth in a 

way that negatively affects the value of 

the critical habitat as a whole for the 

conservation of a listed species. Some 

commenters objected to this 

clarification and advocated for the 

retention of the Handbook language, 

with edits to remove the phrase ‘‘both 

the survival and.’’ 

Courts have looked to the Handbook 

as guidance for interpreting the 

‘‘appreciably diminish’’ standard. In 

2008, the U.S. District Court for the 

Eastern District of California held that 

the Handbook’s definition of 

‘‘appreciably diminish’’ is reasonable 

and therefore would be applied by the 

court as guidance. See Pacific Coast 

Federation of Fishermen’s Associations 

v. Gutierrez, 606 F. Supp. 2d 1195, 

1208–09 (E.D. Cal. 2008) (according 

deference to the agencies’ interpretation 

under the principles of Skidmore v. 

Swift & Co., 323 U.S. 134, 139–40 

(1944)). The court thus applied 

‘‘appreciably diminish’’ as meaning 

‘‘considerably reduce.’’ Other district 

courts have similarly applied the 

‘‘considerably reduce’’ language 

contained in the Handbook’s definition 

of ‘‘appreciably diminish the value.’’ 

See Wild Equity Institute v. City and 

County of San Francisco, No. C 11– 

00958 SI, 2011 WL 5975029, *7 (N.D. 

Cal. Nov. 29, 2011) (unreported) (noting 

that, in Gutierrez, ‘‘The court accepted 

the FWS’ definition of ‘appreciably 

diminish’ to mean ‘considerably 

reduce’’’); Forest Guardians v. 

Veneman, 392 F.Supp.2d 1082, 1092 (D. 

Ariz. 2005) (applying the handbook’s 

definition of ‘‘appreciably diminish’’ as 

guidance for interpreting ‘‘reduce 

appreciably’’ as used in section 7(a)(2)’s 

jeopardy standard). 

In the preamble to the proposed rule, 

we acknowledged that the Handbook’s 

language referring to ‘‘both the survival 

and recovery’’ as part of its definition of 

‘‘appreciably diminish the value’’ is no 

longer valid. We also indicated that the 

term ‘‘considerably,’’ taken alone, may 

lead to disparate outcomes because it 

can mean ‘‘large in amount or extent,’’ 

‘‘worthy of consideration,’’ or 

‘‘significant.’’ In light of the comments 

urging the Services to retain the 

Handbook clarification, the Services 

take this opportunity to clarify that the 

term ‘‘considerably,’’ in this context, 

means ‘‘worthy of consideration’’ and is 

another way of stating that we can 

recognize or grasp the quality, 

significance, magnitude, or worth of the 

reduction in the value of critical habitat. 

We believe that this clarification will 

allow the Services to reach consistent 

outcomes, and we reiterate that the 

Handbook reference to ‘‘both the 

survival and’’ is no longer in effect. 

We disagree with commenters who 

suggest that every diminishment, 

however small, should constitute 

destruction or adverse modification. We 

find it necessary to qualify the word 

‘‘diminish’’ to exclude those adverse 

effects on critical habitat that are so 

minor in nature that they do not impact 

the conservation of a listed species. It is 

appropriate for the Services to consider 

the biological significance of a reduction 

when conducting a section 7(a)(2) 

consultation. The U.S. District Court for 

the Eastern District of California rejected 

as ‘‘overly expansive’’ the plaintiff’s 

suggestion that ‘‘appreciably’’ means 

‘‘perceptible’’. Gutierrez, 606 F.Supp.2d 

at 1208–09. The guidance issued by the 

Services in 2004 and 2005 directed the 

Services to discuss the ‘‘significance of 

anticipated effects to critical habitat,’’ 

which the U.S. District Court for the 

Northern District of California found 

appropriate and ‘‘sufficient to 

implement an ‘appreciably diminish’ 

standard.’’ In re Consolidated Salmonid 

Cases, 791 F. Supp.2d 802, 872 (E.D. 

Cal. 2011) (applying NMFS’ 2005 

guidance), affirmed in part, reversed in 

part on other grounds, San Luis & DeltaMendota Water Authority v. Locke, 776 

F.3d 971 (9th Cir. 2014). Similarly, in 

the context of applying the jeopardy 

standard from section 7(a)(2) of the Act, 

which also includes the term 

‘‘appreciably’’ (in the phrase 

‘‘appreciably reduce’’), the U.S. District 

Court for the District of Columbia 

rejected the argument that the Services 

are required to recognize every 

reduction in the likelihood of survival 

or recovery that is capable of being 

perceived or measured; the court 

instead held that the Services have 

discretion to evaluate a reduction to 

determine if it is ‘‘meaningful from a 

biological perspective.’’ Oceana, Inc. v. 

Pritzker, F.Supp.3d, No. 08–1881, 2014 

WL 7174875, *8–9 (D.D.C. December 17, 

2014). 

Thus, our explanation in this final 

rule of the meaning of ‘‘appreciably 

diminish’’ is consistent with previous 

usage; ‘‘the bar’’ for determining 

whether a proposed action is likely to 

result in destruction or adverse 

modification of critical habitat is neither 

raised nor lowered by this rule. A 

Federal action may adversely affect 

critical habitat in an action area without 

appreciably diminishing the value of the 

critical habitat for the conservation of 

the species. In such cases, a conclusion 

of destruction or adverse modification 

would not be appropriate. Conversely, 

we would conclude that a Federal 

action would result in destruction or 

adverse modification if it appreciably 

diminishes the value of critical habitat 

for the conservation of the species, even 

if the size of the area affected by the 

Federal action is small. 

In summary, the Services have 

applied the term ‘‘appreciably 

diminish’’ from the definition of 

‘‘destruction or adverse modification’’ 

for decades (43 FR 870, January 4, 

1978). With the clarifications of usage in 

this rule, we find no basis in either the 

comments received or in court decisions 

to abandon this well-established 

language. 

Comments on ‘‘conservation value’’: 

We received 68 comments on the term 

‘‘conservation value,’’ suggesting that 

the term was vague, unnecessary, and 

confusing. 

Our Response: In the proposed rule, 

the Services requested comments on 

whether the phrase ‘‘conservation 

value’’ is clear and can be applied 

consistently across consultations. We 

invited the public to suggest alternatives 

that might improve clarity and 

consistency in implementing the 

‘‘destruction or adverse modification’’ 

standard. 

Upon reviewing the comments, we 

agreed that inclusion of a new, 

undefined term, ‘‘conservation value,’’ 

was unnecessary. We wish to clarify 

that by introducing the term 

‘‘conservation value’’ in the proposed 

definition, we did not intend to 

introduce a new concept but rather to 

reiterate that critical habitat is 

designated because it has been found to 

contribute to the conservation of the 

species, in keeping with the statutory 

definition of critical habitat. However, 

to avoid any confusion, we revised the 

first sentence of the final definition to 

replace the term ‘‘conservation value’’ 

with a phrase that conveys its intended 

meaning, i.e., ‘‘the value of critical 

habitat for the conservation of a listed 

species.’’ This minor revision retains the 

meaning of ‘‘conservation value’’ 

without introducing a new term. Like 

the statutory definition of critical 

habitat, it emphasizes the role of critical 

habitat in the conservation of a species. 


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Comments on ‘‘survival or recovery’’: 

Several commenters suggested that the 

Services should simply substitute ‘‘or’’ 

for ‘‘and’’ in the phrase ‘‘survival and 

recovery’’ from the 1986 definition. 

Our Response: The Services find that 

simply changing ‘‘and’’ to ‘‘or’’ in the 

existing regulatory definition would not 

go far enough to incorporate the refined 

understanding we now have regarding 

the role of critical habitat. The Services’ 

regulations introduced the term 

‘‘survival’’ into the 1978 definition; the 

statutory definition of critical habitat 

focuses on conservation, which the 

courts have explained emphasizes 

recovery. (See Sierra Club, at 441: ‘‘The 

ESA’s definition of ‘conservation’ 

speaks to the recovery of a threatened or 

endangered species.’’) The Ninth Circuit 

further indicates that ‘‘Congress said 

that ‘destruction or adverse 

modification’ could occur when 

sufficient critical habitat is lost so as to 

threaten a species’ recovery even if there 

remains sufficient critical habitat for the 

species’ survival’’ (Gifford Pinchot Task 

Force, at 1070). 

In Gifford Pinchot, the Ninth Circuit 

supported the use of ‘‘or’’ in place of 

‘‘and’’; however, this in no way limits 

our discretion to revise the definition to 

more clearly implement Congressional 

intent. In its definition of critical 

habitat, Congress uses the word 

‘‘conservation’’ and not ‘‘survival’’; 

therefore, it is appropriate for the 

Services to revise the definition to 

unambiguously emphasize the value of 

critical habitat for conservation. By 

doing so, we have produced a regulatory 

definition that is less confusing, less 

susceptible to misinterpretation, and 

more consistent with the intent of 

Congress than by merely substituting 

‘‘or’’ for ‘‘and.’’ 

Comments on linking the definition to 

existing physical and biological 

features: We received a few comments 

requesting that the definition explicitly 

include alterations of existing physical 

and biological features. 

Our Response: In the proposed 

definition, we did not intend to 

disregard the alteration of existing 

physical or biological features; rather, 

our goal was to highlight certain types 

of alterations that may not be as evident 

as direct alterations, specifically those 

that preclude or significantly delay 

development of features. We reiterate 

and reaffirm that the first sentence of 

our final definition (Destruction or 

adverse modification means a direct or 

indirect alteration that appreciably 

diminishes the value of critical habitat 

for the conservation of a listed species.) 

is meant to encompass all potential 

types of alterations if they reduce the 

value of the habitat for conservation, 

including alterations of existing 

features. 

In response to comments and to avoid 

further confusion, we revise the second 

sentence to specifically reference 

alterations of existing physical and 

biological features (as does the 1986 

definition), in addition to those that 

preclude or significantly delay 

development of essential physical or 

biological features, as examples of 

effects that may constitute destruction 

or adverse modification of critical 

habitat. We believe that the revised 

sentence provides clarity and 

transparency to the definition and its 

implementation while retaining the core 

idea of the proposed definition. 

Comments on ‘‘may include, but are 

not limited to’’: We received three 

comments on the use of the phrase 

‘‘may include, but are not limited to.’’ 

Commenters found this language 

‘‘overbroad’’ and thought the definition 

should be less vague or narrowed or 

both. One commenter thought it allowed 

a ‘‘catch-all provision’’ too favorable to 

the Federal Government, against 

prospective good-faith challengers. 

Our Response: The phrase, ‘‘may 

include, but are not limited to’’ 

emphasizes that the types of direct or 

indirect alterations that appreciably 

diminish the value of critical habitat for 

listed species include not only those 

that affect physical or biological 

features, but also those that may affect 

the value of critical habitat itself. The 

concept of non-exhaustive inclusion is 

not new to the regulatory definition of 

‘‘destruction or adverse modification.’’ 

Both 1978 and 1986 definitions 

included the phrase. This language has 

not proven problematic in application. 

Indeed, this phrase is commonly used 

by the Services to account for the 

variation that occurs in biological 

entities and ecological systems, and to 

preserve the role of the inherent 

discretion and professional judgment 

the Services must use to evaluate all 

relevant factors when making 

determinations regarding such entities 

and systems. 

We retain the phrase in our final 

definition, as we believe its meaning is 

clear and that it serves an important 

function in the definition. It allows that 

there may be impacts to an area of 

critical habitat itself that are not impacts 

to features. This is particularly 

important for unoccupied habitat, for 

which no physical or biological features 

may have been identified (because 

physical or biological features are not 

required to be present in order to 

designate such an area as critical habitat 

under the second part of the statutory 

definition of ‘‘critical habitat’’). For 

occupied habitat, the Services must 

retain the flexibility to address impacts 

to the area itself, such as those that 

would impede access to or use of the 

habitat. As noted in the proposed rule, 

a destruction or adverse modification 

analysis begins with impacts to the 

features but does not end there (79 FR 

27060, May 12, 2014). For these reasons, 

we retain this phase in the final 

definition. 

Comments on ‘‘life-history needs’’: We 

received 12 comments regarding the 

phrase ‘‘physical or biological features 

that support the life-history needs.’’ The 

commenters considered the phrase to be 

vague and poorly defined. Some 

commenters felt that the phrase 

misinterpreted or ‘‘lowered the bar’’ 

from that intended by the statutory 

language ‘‘physical or biological features 

essential to the conservation of a 

species.’’ Commenters recommended 

describing the physical and biological 

features as ‘‘essential’’ or ‘‘necessary.’’ 

Our Response: We did not intend the 

phrase, ‘‘physical or biological features 

that support the life-history needs’’ to 

‘‘lower the bar’’ for identifying physical 

and biological features, as established in 

the statutory definition of critical 

habitat. Rather, our intent was to 

explain that physical or biological 

features provide for the life-history 

needs, which are essential to the 

conservation of the species. 

However, based on review of the 

public comments on this issue, we 

recognized the confusion caused by 

introducing a new ‘‘term of art’’ in the 

proposed definition. To avoid 

confusion, we revised the second 

sentence of the definition to replace the 

phrase, ‘‘support the life-history needs,’’ 

with its intended meaning, ‘‘essential to 

the conservation of a species.’’ In 

accordance with the statutory definition 

of critical habitat, the revision 

emphasizes our focus on those physical 

or biological features that are essential 

to the conservation of the species. We 

believe that the revised sentence, which 

aligns more closely to the statutory 

language, provides clarity and 

transparency to the definition and its 

implementation. 

Comments on ‘‘preclude or 

significantly delay:’’ We received many 

comments regarding the terms 

‘‘preclude or significantly delay’’ in the 

proposed definition. Commenters 

believed these concepts are vague, 

undefined, and allow for arbitrary 

determinations. One commenter 

asserted that focusing on effects that 

preclude or significantly delay 

development of features was an 

expansion of authority that conflicted 


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7220 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

with E.O. 13604 (Improving 

Performance of Federal Permitting and 

Review of Infrastructure Projects). 

Our Response: Our proposed 

definition of ‘‘destruction or adverse 

modification’’ expressly included effects 

that preclude or significantly delay the 

development of physical or biological 

features that support the life-history 

needs of the species for recovery. 

Although we have revised the definition 

in minor respects from the proposed 

rule (see Summary of Changes from the 

Proposed Definition, above), we retain 

its forward-looking aspect. 

Our determination of ‘‘destruction or 

adverse modification’’ is based not only 

on the current status of the critical 

habitat but also, in cases where it is 

degraded or depends on ongoing 

ecological processes, on the potential for 

the habitat to provide further support 

for the conservation of the species. 

While occupied critical habitat would 

always contain at least one or more of 

the physical or biological features 

essential to the conservation of the 

listed species, an area of critical habitat 

may be in a degraded condition or less 

than optimal successional stage and not 

contain all physical or biological 

features at the time it is designated or 

those features may be present but in a 

degraded or less than optimal condition. 

The area may have been designated as 

critical habitat, however, because of the 

potential for some of the features not 

already present or not yet fully 

functional to be developed, restored, or 

improved and contribute to the species’ 

recovery. The condition of the critical 

habitat would be enhanced as the 

physical or biological features essential 

to the conservation of the species are 

developed, restored, or improved, and 

the area is able to provide the recovery 

support for the species on which the 

designation is based. The value of 

critical habitat also includes 

consideration of the likely capability of 

the critical habitat to support the 

species’ recovery given the backdrop of 

past and present actions that may 

impede formation of the optimal 

successional stage or otherwise degrade 

the critical habitat. Therefore, a 

proposed action that alters habitat 

conditions to preclude or significantly 

delay the development or restoration of 

the physical or biological features 

needed to achieve that capability 

(relative to that which would occur 

without the proposed action undergoing 

consultation), where the change 

appreciably diminishes the value of 

critical habitat for the conservation of 

the species, would likely result in 

destruction or adverse modification. 

This is not a new concept or 

expansion of authority. The Services 

have previously recognized and 

articulated the need for this forwardlooking aspect in the analysis of 

destruction or adverse modification of 

critical habitat. As discussed in the 

Background section, each Service issued 

substantially identical guidance 

following the decisions of the Fifth and 

Ninth Circuits invalidating the current 

regulatory definition (FWS 2004; NMFS 

2005). For the past 10 years, the 

Services have evaluated whether, with 

implementation of the proposed Federal 

action, critical habitat would remain 

functional (or retain the current ability 

for the primary constituent elements to 

be functionally established) to serve the 

intended conservation role for the 

species. As noted above, ‘‘primary 

constituent elements’’ was a term 

introduced in the critical habitat 

designation regulations (50 CFR 424.12) 

to describe aspects of ‘‘physical or 

biological features.’’ On May 12, 2014, 

the Services proposed to revise these 

regulations to remove the use of the 

term ‘‘primary constituent elements’’ 

and replace it with the statutory term 

‘‘physical or biological features’’ (79 FR 

27066). However, the shift in 

terminology does not change the 

approach used in conducting a 

‘‘destruction or adverse modification’’ 

analysis, which is the same regardless of 

whether the original designation 

identified primary constituent elements, 

physical or biological features, or both. 

Several commenters asserted that 

assessing the projected condition of the 

habitat and projected development of 

physical and biological features would 

be inconsistent with the Act. The 

Services disagree. The Act defines 

critical habitat to include both areas 

occupied at the time of listing that 

contain features ‘‘essential to the 

conservation’’ of the species, as well as 

unoccupied areas that are ‘‘essential for 

the conservation’’ of listed species. 

Unoccupied habitat by definition is not 

required to contain essential physical or 

biological features to qualify for 

designation, and even occupied habitat 

is not required to contain all features 

throughout the area designated. Yet, the 

obligation to preserve the value of 

critical habitat for the conservation of 

listed species applies to all designated 

critical habitat. At some point in the 

recovery process, habitat must supply 

features that are essential to the 

conservation of the species. It is thus 

important to recognize not only the 

features that are already present in the 

habitat, but the potential of the habitat 

to naturally develop the features over 

time. Therefore, the Services believe it 

is necessary (and consistent with the 

Act) to examine a project’s effects on the 

natural development of physical and 

biological features essential to the 

conservation of a species. 

‘‘Preclusion’’ prevents the features 

from becoming established. The phrase 

‘‘significantly delay’’ requires more 

explanation. We intend this phrase to 

encompass a delay that interrupts the 

likely natural trajectory of the 

development of physical and biological 

features in the designated critical 

habitat to support the species’ recovery. 

That trajectory is viewed in the context 

of the current status of the designated 

critical habitat and with respect to the 

conservation needs of the listed species. 

If the Services make a destruction or 

adverse modification determination, 

they will develop reasonable and 

prudent alternatives on a case by case 

basis and based on the best scientific 

and commercial data available. 

Comments on ‘‘foreseeable future:’’ 

We received many comments regarding 

the term ‘‘foreseeable future,’’ as used in 

the preamble to the proposed rule. 

Commenters believed this concept is 

vague and undefined, and requires 

speculation on the part of the Services. 

Our Response: In the preamble to the 

proposed rule (79 FR 27060, May 12, 

2014), we used the term ‘‘foreseeable 

future’’ to explain and provide context 

for the forward-looking aspect of the 

destruction or adverse modification 

analysis; we explained that the 

conservation value of critical habitat 

also includes consideration of the likely 

capability, in the foreseeable future, of 

the critical habitat to support the 

species’ recovery given the backdrop of 

past and present actions that may 

impede formation of the optimal 

successional stage or otherwise degrade 

the critical habitat. Therefore, an action 

that would preclude or significantly 

delay the development or restoration of 

the physical or biological features 

needed to achieve that capability, to an 

extent that it appreciably diminishes the 

value of critical habitat for the 

conservation of the species relative to 

that which would occur without the 

action undergoing consultation, is likely 

to result in destruction or adverse 

modification. 

In the proposed rule, we used the 

language ‘‘foreseeable future’’ not as 

specifically used in the definition of the 

term ‘‘threatened species’’ but as a 

generally understood concept; that is, in 

regards to critical habitat, we consider 

its future capabilities only so far as we 

are able to make reliable projections 

with reasonable confidence. The 

Services do not speculate when 


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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7221 

evaluating whether a Federal action 

would preclude or significantly delay 

the development of features. As 

required by the Act, we rely on the best 

scientific and commercial data available 

to determine whether the action is likely 

to destroy or adversely modify critical 

habitat (16 U.S.C. 1536(a)(2)). This rule 

formalizes in regulation the forwardlooking aspect of the destruction or 

adverse modification analysis adopted 

in the 2004 and 2005 guidance. 

Additional comments relating to 

forward-looking aspect of definition: 

Several commenters felt that 

considerations regarding ‘‘precluding’’ 

or ‘‘significant delay’’ and ‘‘foreseeable 

future’’ would result in more 

consultations and longer review times. 

Our Response: As noted above and in 

the proposed rule, the Services have 

applied these concepts since the 2004 

and 2005 guidance documents, and no 

significant increase in the number of 

consultations or review times has 

occurred as a result. The Services do not 

believe that adopting this approach in 

our regulations will result in more or 

lengthier consultations. 

Comments on defining ‘‘destruction or 

adverse modification’’ instead of 

defining ‘‘destruction’’ and ‘‘adverse 

modification’’ separately: We received 

three comments requesting that we 

define ‘‘destruction’’ and ‘‘adverse 

modification’’ independently. 

Our Response: ‘‘Destruction or 

adverse modification of critical habitat’’ 

was not defined in the statute. The 

Services defined the term in the 1978 

regulations and amended the definition 

in 1986. The Services have thus applied 

the term as a singular concept for many 

years without difficulty. 

Independently defining ‘‘destruction’’ 

and ‘‘adverse modification’’ is 

unnecessary and would not alter the 

outcome of section 7(a)(2) consultations. 

If, through consultation, the Services 

determine that a proposed Federal 

action likely would result in the 

destruction or adverse modification of 

critical habitat, we would, if possible, 

provide a reasonable and prudent 

alternative to the action. Such 

alternative must not violate section 

7(a)(2) of the Act, must be economically 

and technologically feasible, must be 

capable of being implemented in a 

manner consistent with the intended 

purpose of the action, and must be 

capable of being implemented 

consistent with the scope of the Federal 

agency’s legal authority and jurisdiction 

(16 U.S.C. 1536(b)(3)(A); 50 CFR 

402.14(h); 50 CFR 402.02 (defining 

‘‘reasonable and prudent alternatives’’)). 

Independently defining ‘‘destruction’’ 

and ‘‘adverse modification’’ would 

unnecessarily complicate the process 

without improving it or changing the 

outcome. The key distinction is whether 

the action appreciably diminishes the 

value of critical habitat for the 

conservation of the species, not whether 

the action destroys critical habitat or 

adversely modifies it. The time and 

effort applied to determine whether the 

action destroyed or adversely modified 

critical habitat would be better spent on 

the identification of reasonable and 

prudent alternatives to the proposed 

action. Therefore, we do not 

independently define ‘‘destruction’’ and 

‘‘adverse modification.’’ 

Comments on the need for a 

quantitative definition: Eight 

commenters suggested the need for a 

quantitative definition that minimizes 

the Services’ discretion. 

Our Response: We did not receive any 

examples of a quantitative definition. 

We are not able to provide such a 

definition because Federal actions, 

species, and critical habitat designations 

are complex and differ considerably. 

Our analyses of the actions and their 

effects on critical habitat require caseby-case consideration that does not fit 

neatly into a mathematical formula. 

Congress anticipated the need for the 

Services to use their professional 

judgment by requiring us to provide our 

opinion, detailing how the action affects 

species and critical habitat. This 

opinion must be based on the best 

available scientific and commercial 

information available for a particular 

action and species. The level of 

specificity and precision in available 

data will vary across actions and across 

species, and therefore a one-size-fits-all 

standard would not be workable. 

Further, the U.S. Court of Appeals for 

the Ninth Circuit has specifically held 

that nothing in the Act or current 

regulations requires that the analysis of 

destruction or adverse modification be 

quantitative in nature. Butte 

Environmental Council, 620 F.3d at 948 

(agency not required to calculate rate of 

loss of habitat). See also San Luis & 

Delta-Mendota Water Authority v. 

Salazar, 760 F.Supp.2d 855, 945 (E.D. 

Cal. 2010) (Services not required to set 

threshold for determining destruction or 

adverse modification), affirmed in part, 

reversed in part on other grounds sub 

nom. San Luis & Delta-Mendota Water 

Auth. v. Jewell, 747 F.3d 581 (9th Cir. 

2014). 

Therefore, we find that attempting to 

specify a quantitative threshold is 

neither feasible nor required. 

Comments on the scale of analysis: 

Many commenters expressed confusion 

or concern regarding the scale at which 

the determination of destruction or 

adverse modification of critical habitat 

is made. Some commenters agreed with 

the Services’ interpretation of the statute 

and the existing implementing 

regulations at 50 CFR 402.14, as 

described in the preamble to the 

proposed rule, that determinations on 

destruction or adverse modification are 

based on critical habitat as a whole, not 

just on the areas where the action takes 

place or has direct impacts. These 

commenters requested clarification of 

the process used to make such 

determinations or thought that the 

language, ‘‘critical habitat, as a whole,’’ 

should be included in the rule and not 

just the preamble. Other commenters 

disagreed with the Services’ 

interpretation that the destruction or 

adverse modification determination 

should be based on critical habitat as a 

whole and recommended that the 

Services evaluate destruction or adverse 

modification at the smallest scale 

relevant to determining whether the 

species has met its recovery criteria. 

Our Response: As explained in the 

preambles to this rule and the proposed 

rule, the determination of ‘‘destruction 

or adverse modification’’ will be based 

on the effect to the value of critical 

habitat for the conservation of a listed 

species. In other words, the question is 

whether the action will appreciably 

diminish the value of the critical habitat 

as a whole, not just in the action area 

(i.e., all areas to be affected directly or 

indirectly by the Federal action and not 

merely the immediate area involved in 

the action; 50 CFR 402.02). 

The section 7 process involves 

multiple determinations, made by the 

action agency or the Services or both, 

regarding critical habitat. Where critical 

habitat has already been designated, 

section 7(a)(2) of the Act applies. Under 

the implementing regulations, the 

Federal agency first determines if its 

proposed action may affect critical 

habitat. If such a determination is made, 

formal consultation is required unless 

the Federal agency determines, with the 

written concurrence of the Services, that 

the action is not likely to adversely 

affect critical habitat. In accordance 

with the Act, our implementing 

regulations at 50 CFR 402.14(g)(1) 

through (g)(4), and the 2004 and 2005 

guidance documents issued by FWS and 

NMFS (see the Background section), the 

formal consultation process generally 

involves four components: (1) The 

status of critical habitat, which 

evaluates the condition of critical 

habitat that has been designated for the 

species in terms of physical or 

biological features, the factors 

responsible for that condition, and the 

intended conservation role of the 


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critical habitat overall; (2) the 

environmental baseline, which 

evaluates the current condition of the 

critical habitat in the action area, the 

factors responsible for that condition, 

and the relationship of the affected 

critical habitat in the action area to the 

entire critical habitat with respect to the 

conservation of the listed species; (3) 

the effects of the action, which includes 

the direct and indirect effects of the 

action (and the effects of any 

interrelated or interdependent activities) 

and describes how those effects alter the 

value of critical habitat within the 

action area; and (4) cumulative effects 

(as defined at 50 CFR 402.02), which 

evaluates the effects of future, nonFederal activities in the action area and 

describes how those effects are expected 

to alter the value of critical habitat 

within the action area. After 

synthesizing and integrating these four 

components, the Services make their 

final determination regarding the impact 

of the action on the overall value of the 

critical habitat designation. The 

Services conclude whether critical 

habitat would remain functional (or 

retain the current ability for the features 

to be functionally established in areas of 

currently unoccupied but capable 

habitat) to fulfill its value for the 

conservation of the species, or whether 

the action appreciably reduces the value 

of critical habitat for the conservation of 

the species. 

Where critical habitat has only been 

proposed for designation, a distinct but 

related process applies under section 

7(a)(4) of the Act. The action agency 

must initiate a conference with the 

Services on the effects of its proposed 

action when the action is likely to result 

in destruction or adverse modification 

of the proposed critical habitat (50 CFR 

402.10(b)). Although a conference 

generally will consist of informal 

discussions leading to advisory 

recommendations, action agencies have 

the option of conducting the conference 

under the same procedures that apply to 

formal consultations so that a 

conference opinion is produced (and 

later adopted as a biological opinion 

upon finalization of the critical habitat 

designation, provided certain conditions 

are met; 50 CFR 402.10(c) and (d)). 

While there are important differences 

between the consultation and 

conference processes, the same 

analytical steps as described in the 

paragraph above apply in the Services’ 

evaluation of impacts to critical habitat. 

Adverse effects to critical habitat 

within the action area may not 

necessarily rise to the level of 

destruction or adverse modification to 

the designated critical habitat. The 

Handbook expressly provides that 

adverse effects to single elements or 

segments of critical habitat generally do 

not result in destruction or adverse 

modification unless that loss, when 

added to the environmental baseline, is 

likely to appreciably diminish the 

capability of the critical habitat to 

satisfy essential requirements of the 

species. Courts have concurred that a 

proposed action may result in 

destruction of some areas of critical 

habitat and still not necessarily result in 

a finding of ‘‘destruction or adverse 

modification.’’ See Conservation 

Congress v. U.S. Forest Service, 720 

F.3d 1048, 1057 (9th Cir. 2013) (‘‘Even 

completely destroying 22 acres of 

critical habitat does not necessarily 

appreciably diminish the value of the 

larger critical habitat area.’’); Butte 

Environmental Council, 620 F.3d at 948 

(applying the Handbook provision to 

support the conclusion that ‘‘[a]n area of 

a species’ critical habitat can be 

destroyed without appreciably 

diminishing the value of critical habitat 

for the species’ survival or recovery.’’). 

The analysis thus places an emphasis 

on the value of the designated critical 

habitat as a whole for the conservation 

of a species, in light of the role the 

action area serves with regard to the 

function of the overall designation. Just 

as the determination of jeopardy under 

section 7(a)(2) of the Act is made at the 

scale of the entire listed entity, a 

determination of destruction or adverse 

modification is made at the scale of the 

entire critical habitat designation. Even 

if a particular project would cause 

adverse effects to a portion of critical 

habitat, the Services must place those 

impacts in context of the designation to 

determine if the overall value of the 

critical habitat is likely to be reduced. 

This could occur where, for example, a 

small affected area of habitat is 

particularly important in its ability to 

support the conservation of a species 

(e.g., a primary breeding site). Thus, the 

size or proportion of the affected area is 

not determinative; impacts to a small 

area may in some cases result in a 

determination of destruction or adverse 

modification, while impacts to a large 

geographic area will not always result in 

such a finding. 

Because the existing consultation 

process already ensures that destruction 

or adverse modification of critical 

habitat is analyzed at the appropriate 

scale, the Services decline to include 

language referring to determinations 

based on critical habitat ‘‘as a whole’’ in 

the definition of ‘‘destruction or adverse 

modification.’’ 

Comments on aggregate effects: 

Several commenters expressed concern 

that aggregate adverse impacts to critical 

habitat are not adequately addressed in 

the Services’ analyses and that the 

proposed rule should be revised to 

expressly require the evaluation of 

aggregate effects to critical habitat that 

multiple actions will have on a species’ 

recovery. One commenter urged the 

Services to develop a system to track the 

aggregate effects that destroy or degrade 

critical habitat. 

Our Response: The Services’ 

biological opinion provides an 

assessment of the status of the critical 

habitat (including threats and trends), 

the environmental baseline of the action 

area (describing all past and present 

impacts), and cumulative effects. Under 

the implementing regulations of the Act, 

cumulative effects are defined as those 

effects of future State or private 

activities, not involving Federal 

activities, that are reasonably certain to 

occur within the action area of the 

Federal action subject to consultation 

(50 CFR 402.02). Following the 

definition, we only consider cumulative 

effects within the action area. The 

effects of any particular action are 

evaluated in the context of this 

assessment, which incorporates the 

effects of all current and previous 

actions. This avoids situations where 

each individual action is viewed as 

causing only insignificant adverse 

effects but, over time, the aggregate 

effects of these actions would erode the 

conservation value of the critical 

habitat. 

Comments on the role of mitigation in 

‘‘destruction or adverse modification’’ 

findings: Four commenters thought the 

‘‘net effects’’ of an action, including 

consideration of ‘‘mitigation and 

offsetting beneficial’’ measures, should 

be considered in the revised regulatory 

definition. One commenter suggested 

that the Services should develop an 

explicit framework for allowing project 

proponents to avoid a destruction or 

adverse modification finding by 

restoring the same biological or physical 

feature of critical habitat that they 

degrade, provided there is evidence the 

restoration is likely to succeed. 

Our Response: As stated in the 

Services’ 2004 and 2005 guidance, 

conservation activities (e.g., 

management, mitigation, etc.) outside of 

designated critical habitat should not be 

considered when evaluating effects to 

critical habitat. However, conservation 

activities within critical habitat, 

included as part of a proposed action to 

mitigate the adverse effects of the action 

on critical habitat, are considered by the 

Services’ in formulating our biological 

opinion as to whether an action is likely 

to result in the destruction or adverse 


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modification of critical habitat. This 

consideration of beneficial actions is 

consistent with the implementing 

regulations at 50 CFR 402.14(g)(8), 

which set forth that in formulating its 

biological opinion, any reasonable and 

prudent alternatives, and any reasonable 

and prudent measures, the Service will 

use the best scientific and commercial 

data available and will give appropriate 

consideration to any beneficial actions 

taken by the Federal agency or 

applicant, including any actions taken 

prior to the initiation of consultation. 

The Services welcome the inclusion of 

beneficial conservation activities as part 

of proposed actions. However, because 

the question of whether beneficial 

actions can compensate for impacts to 

critical habitat is complicated and must 

be evaluated on a case-by-case basis, it 

would be advisable for Federal agencies 

and applicants to coordinate closely 

with the Services on such activities. 

Comments on continuation of current 

uses: Two commenters discussed 

current land practices and other uses on 

areas that may be designated as critical 

habitat. One commenter specifically 

requested that the final rule indicate 

that continuation of current uses does 

not constitute destruction or adverse 

modification. 

Our Response: There is nothing in the 

Act to suggest that previously ongoing 

activities are or may be exempted from 

analysis during section 7(a)(2) 

consultations. Accordingly, our 

longstanding regulatory framework does 

not distinguish between ongoing and 

other actions. ‘‘Action’’ is defined 

broadly at 50 CFR 402.02 to include all 

activities or programs of any kind 

authorized, funded, or carried out, in 

whole or in part, by Federal agencies in 

the United States or upon the high seas. 

The applicability provision of the 

regulations further explains that section 

7(a)(2) obligations arise so long as there 

is discretionary Federal involvement or 

control (50 CFR 402.03). It would be 

unsupported and beyond the scope of 

the definition of ‘‘destruction or adverse 

modification’’ to change these wellestablished principles. 

Comments regarding the use of 

recovery documents as a basis for a 

destruction or adverse modification 

determination: We received three 

comments requesting that the Services 

clarify that criteria, goals, or programs 

established in recovery plans are not 

enforceable and may not be used as a 

basis for a destruction or adverse 

modification decision. 

Our Response: The Services agree that 

recovery plans convey guidance and are 

not regulatory documents that compel 

any action to occur. In addition, section 

7(a)(2) of the Act describes a standard of 

prohibition rather than a mandate to 

further recovery. However, criteria, 

goals, and programs for recovery that are 

established in these plans may be used 

in our evaluation of whether, with 

implementation of the proposed action, 

critical habitat would retain its value for 

the conservation of the species. 

Recovery plans, in addition to critical 

habitat rules, may provide the best 

scientific and commercial information 

available on the value of critical habitat 

to the conservation of the species, thus 

assisting the Services with evaluating 

the effects of a proposed action on 

critical habitat. 

Comments on undue burden: We 

received 14 comments regarding the 

perceived potential for undue burden on 

Tribes, State and local governments, and 

various industries. The commenters 

suggested that the proposed definition 

would prevent the issuance of permits 

or impose unwarranted restrictions and 

requirements on permit applicants, 

resulting in additional costs for project 

redesign, reductions in productivity, 

and increases in the time and effort 

required to submit permit applications. 

Some commenters predicted an increase 

in the number of section 7(a)(2) 

consultations, especially formal 

consultations. Others predicted that the 

Services would conclude destruction or 

adverse modification of critical habitat 

more frequently. 

Our Response: Because the final 

regulatory definition largely formalizes 

existing guidance that FWS and NMFS 

have implemented since 2004 and 2005, 

respectively, we conclude that the 

section 7(a)(2) consultation process will 

not significantly change. The final 

definition does not ‘‘raise the bar’’ in 

any way. We will not reinitiate 

consultations as a result of this rule. We 

will consult on ongoing actions in a 

similar manner as we have since the 

issuance of the guidance. Therefore, we 

do not anticipate changes in the costs 

related to section 7(a)(2) consultations 

or the frequency at which the Services 

conclude destruction or adverse 

modification of critical habitat. The 

decision to consult is made prior to and 

independent of our analysis of 

destruction or adverse modification of 

critical habitat (i.e., by a Federal agency 

applying the ‘‘may affect’’ standard of 

50 CFR 402.14(a) to determine whether 

their action may affect designated 

critical habitat). If a Federal agency 

determines, with the written 

concurrence of the Services, that the 

proposed action is not likely to 

adversely affect critical habitat, formal 

consultation is not required (50 CFR 

402.14(b)), and the Services would not 

perform an analysis of destruction or 

adverse modification of critical habitat. 

Therefore, the number of section 7(a)(2) 

consultations, and formal consultations 

in particular, is not likely to be affected 

by this rule. 

Comments on Tribe, State, and local 

coordination: We received five 

comments from Tribes, State and local 

governments, and industry groups 

indicating that we should consult or 

coordinate with Tribes, States, and local 

governments to finalize the proposed 

rule. 

Our Response: The Services have 

undertaken numerous efforts to ensure 

that our State, Tribal, and other partners 

had full notice and opportunity to 

provide input into the development of 

this rule. We reached out to industry 

groups, environmental organizations, 

intergovernmental organizations, and 

Federal agencies. We worked with the 

Association of Fish and Wildlife 

Agencies and the Native American Fish 

and Wildlife Society to distribute 

information to Tribes, States, and local 

governments about the proposed rule. 

The Services notified their respective 

Tribal liaisons, who sent letters to 

Tribes regarding this rule. We also 

hosted a webinar for the States on May 

23, 2014. We considered all submitted 

comments, which included comments 

from Tribes, States, and local 

governments, and, as warranted, applied 

suggestions to the final rule. 

Comments on NEPA: We received 11 

comments suggesting that a categorical 

exclusion from the NEPA was not 

appropriate for the proposed rule and 

that the Services should analyze the 

environmental impacts of this action. 

Our Response: The Services believe 

this rule likely would qualify for one or 

more categorical exclusions adopted by 

the Department of the Interior and the 

National Oceanic and Atmospheric 

Administration, respectively. 

Nevertheless, in an abundance of 

caution, the Services have completed an 

environmental assessment, which is 

available at the Federal e-rulemaking 

portal: http://www.regulations.gov (see 

ADDRESSES). 

Comments on Energy Supply, 

Distribution, and Use (E.O. 13211), 

Takings (E.O. 12630), and Economic 

Analyses (E.O. 12866, the Regulatory 

Flexibility Act, and the Unfunded 

Mandates Reform Act): We received 

comments that the Services should 

prepare a Statement of Energy Effects 

(E.O. 13211, 1 comment), a regulatory 

flexibility analysis (2 comments), and an 

economic analysis (2 comments). 

Our Response: This rule clarifies 

existing requirements for Federal 

agencies under the Act. Based on 


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7224 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

procedures applied through existing 

agency guidance, the rule is 

substantially unlikely to lead to 

different conclusions in section 7(a)(2) 

consultations. The rule clarifies the 

standard by which we will evaluate the 

effect of agency actions on critical 

habitat pursuant to section 7(a)(2) of the 

Act. For further information, please see 

the relevant sections under Required 

Determinations, below. 

Comments on extension of the 

comment period: Many commenters 

requested an extension of the public 

comment period announced in the draft 

policy. Additionally, we received 

requests to reopen the comment period 

that ended on October 9, 2014. 

Our Response: On June 26, 2014 (79 

FR 36284), we extended the public 

comment period on the draft policy for 

an additional 90 days to accommodate 

this request and to allow for additional 

review and public comment. The 

comment period for the draft policy was 

therefore open for 150 days, which 

provided adequate time for all 

interested parties to submit comments 

and information. 

Comments on the proposed rule being 

‘‘beyond the scope of the Act’’: We 

received 25 comments stating that the 

proposed definition exceeded the 

authority of the Act. Some commenters 

wrote that it was beyond the scope of 

the Act. Some expressed concern that 

the proposed definition implied an 

affirmative conservation requirement or 

mandate for recovery. 

Our Response: As the agencies 

charged with administering the Act, it is 

within our authority to promulgate and 

amend regulations to ensure transparent 

and consistent implementation. Under 

general principles of administrative law, 

an agency may resolve ambiguities and 

define or clarify statutory language as 

long as the agency’s interpretation is a 

permissible interpretation of the statute. 

The term ‘‘destruction or adverse 

modification’’ was not defined by 

Congress. Consequently, the Services 

first promulgated a regulatory definition 

in 1978, and then later in 1986. As 

previously mentioned, the ‘‘survival and 

recovery’’ standard of our earlier 

definitions was invalidated by courts. 

We believe that this revised definition 

comports with the language and 

purposes of the Act. 

As explained in the preamble to the 

proposed rule, section 7(a)(2) only 

applies to discretionary agency actions 

and does not create an affirmative duty 

for action agencies to recover listed 

species (79 FR 27060, May 12, 2014). 

Similarly, the definition of ‘‘destruction 

or adverse modification’’ is a 

prohibitory standard only. The 

definition does not, and is not intended 

to, create an affirmative conservation 

requirement or a mandate for recovery. 

Consistent with the Ninth Circuit’s 

opinion, in the context of describing an 

action that ‘‘jeopardizes’’ a species, in 

National Wildlife Federation v. NMFS, 

524 F.3d 917 (9th Cir. 2008), the 

Services believe that an action that 

‘‘destroys’’ or ‘‘adversely modifies’’ 

critical habitat must cause a 

deterioration in the value of critical 

habitat, which includes its ability to 

provide recovery support to the species 

based on ongoing ecological processes. 

Section 7(a)(2) of the Act requires 

Federal agencies to insure that any 

action they authorize, fund, or carry out 

is not likely to result in the destruction 

or adverse modification of critical 

habitat. Under this section of the Act, 

Federal agencies are not required to 

recover species; however, they must 

insure that their actions are not likely to 

prevent or impede the recovery of the 

species through the destruction or 

adverse modification of critical habitat. 

To be clear, Federal actions are not 

required to improve critical habitat, but 

they must not reduce its existing 

capacity to conserve the species over 

time. Section 7(a)(2) and the definition 

of ‘‘destruction or adverse modification’’ 

are implemented independent of section 

7(a)(1), which directs Federal agencies 

to utilize their authorities to carry out 

affirmative conservation programs for 

listed species. 

Comments suggesting revision or 

withdrawal of the rule: We received 15 

comments requesting that we revise or 

withdraw the proposed rule. 

Our Response: In order to administer 

the Act, the Services need a regulatory 

definition of ‘‘destruction or adverse 

modification.’’ The Fifth and Ninth 

Circuits found the current regulatory 

definition to be invalid over a decade 

ago because it required that both the 

survival and the recovery of listed 

species be impacted. As discussed 

previously, in 2004 and 2005, the 

Services issued internal guidance 

instructing their biologists to 

discontinue use of the regulatory 

definition and to instead consider 

whether critical habitat would continue 

to contribute (or have the potential to 

contribute) to the conservation of the 

species. After several years of 

implementation, the Services herein 

formalize this guidance by modifying 

the regulatory definition. In response to 

public comments, we have made minor 

revisions to the proposed definition; 

however, the meaning and 

implementation of the standard remains 

unchanged. The final definition is clear, 

implementable, and consistent with the 

Act. 

Required Determinations 

Regulatory Planning and Review (E.O. 

12866) 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is a significant regulatory action 

and has reviewed this rule under E.O. 

12866 because it may raise novel legal 

or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in this Executive 

order. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

SBREFA requires Federal agencies to 

provide a statement of the factual basis 

for certifying that a rule will not have 

a significant economic impact on a 

substantial number of small entities. We 

certify that this rule will not have a 

significant economic effect on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

This rule clarifies existing 

requirements for Federal agencies under 

the Act. Federal agencies are the only 

entities that are directly affected by this 

rule, and they are not considered to be 

small entities under SBREFA’s size 

standards. No other entities are directly 

affected by this rule. 

This rule will be applied in 

determining whether a Federal agency 

has ensured, in consultation with the 

Services, that any action it would 

authorize, fund, or carry out is not likely 

to result in the destruction or adverse 

modification of critical habitat. Based 

on procedures applied through existing 

agency guidance, this rule is unlikely to 

affect our determinations. The rule 

provides clarity to the standard with 

which we will evaluate agency actions 

pursuant to section 7(a)(2) of the Act. 


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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7225 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.): 

(a) This rule will not ‘‘significantly or 

uniquely’’ affect small governments. We 

have determined and certify under the 

Unfunded Mandates Reform Act (2 

U.S.C. 1502 et seq.) that this rule will 

not impose a cost of $100 million or 

more in any given year on local or State 

governments or private entities. A Small 

Government Agency Plan is not 

required. As explained above, small 

governments would not be affected 

because the regulation will not place 

additional requirements on any city, 

county, or other local municipalities. 

(b) This rule will not produce a 

Federal mandate of $100 million or 

greater in any year (i.e., it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act). 

This regulation would not impose any 

additional management or protection 

requirements on the States or other 

entities. 

Takings (E.O. 12630) 

In accordance with E.O. 12630, we 

have determined the rule does not have 

significant takings implications. 

A takings implication assessment is 

not required because this rule (1) will 

not effectively compel a property owner 

to suffer a physical invasion of property 

and (2) will not deny all economically 

beneficial or productive use of the land 

or aquatic resources. Indeed, this 

regulation provides broad program 

direction for the Services’ application of 

section 7(a)(2) in consultations on future 

proposed Federal actions and does not 

itself result in any particular action 

concerning a specific property. Further, 

this rule substantially advances a 

legitimate government interest 

(conservation and recovery of listed 

species) and does not present a barrier 

to all reasonable and expected beneficial 

use of private property. 

Federalism (E.O. 13132) 

In accordance with E.O. 13132, we 

have considered whether this rule will 

have significant Federalism effects and 

have determined that a federalism 

summary impact statement is not 

required. This rule pertains only to 

determinations of Federal agency 

compliance with section 7(a)(2) of the 

Act, and will not have substantial direct 

effects on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. 

Civil Justice Reform (E.O. 12988) 

This rule will not unduly burden the 

judicial system and meets the applicable 

standards provided in sections 3(a) and 

3(b)(2) of E.O. 12988. This rule clarifies 

how the Services will make 

determinations on whether a Federal 

agency has ensured that any action it 

authorizes, funds, or carries out is not 

likely to result in the destruction or 

adverse modification of critical habitat. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’, 

November 6, 2000), the Department of 

the Interior Manual at 512 DM 2, the 

Department of Commerce (DOC) Tribal 

Consultation and Coordination Policy 

(May 21, 2013), DOC Departmental 

Administrative Order (DAO) 218–8, and 

NOAA Administrative Order (NAO) 

218–8 (April 2012), we have considered 

possible effects of this final rule on 

Federally recognized Indian Tribes. 

Following an exchange of information 

with tribal representatives, we have 

determined that this rule, which 

modifies the general framework for 

conducting consultations on Federal 

agency actions under section 7(a)(2) of 

the Act, does not have tribal 

implications as defined in Executive 

Order 13175. We will continue to 

collaborate and coordinate with Tribes 

on issues related to Federally listed 

species and their habitats and work with 

them as appropriate as we engage in 

individual section 7(a)(2) consultations. 

See Joint Secretarial Order 3206 

(‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’, June 

5, 1997). 

Paperwork Reduction Act of 1994 

This rule does not contain any 

collections of information that require 

approval by the OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). This rule does not impose 

recordkeeping or reporting requirements 

on Tribes, State or local governments, 

individuals, businesses, or 

organizations. We may not conduct or 

sponsor and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

National Environmental Policy Act 

(NEPA) 

In the proposed rule, we invited the 

public to comment on whether and how 

the regulation may have a significant 

effect upon the human environment, 

including any effects identified as 

extraordinary circumstances at 43 CFR 

46.215. After considering the comments 

received and further evaluating whether 

there is any arguable basis to require 

preparation of an environmental 

assessment, we analyzed this rule in 

accordance with the criteria of the 

National Environmental Policy Act, the 

Department of the Interior regulations 

on Implementation of the NEPA (43 CFR 

46.10–46.450), the Department of the 

Interior Manual (516 DM 1–6 and 8), 

and National Oceanographic and 

Atmospheric Administration 

Administrative Order 216–6. This 

analysis was undertaken in an 

abundance of caution only, as we 

believe the rule would qualify for one or 

more categorical exclusions. Based on a 

review and evaluation of the 

information contained in the 

Environmental Assessment, we made a 

determination that the Final Definition 

for the phrase ‘‘destruction or adverse 

modification’’ of critical habitat will not 

have a significant effect on the quality 

of the human environment under the 

meaning of section 102(2)(c) of the 

National Environmental Policy Act of 

1969 (as amended). 

Energy Supply, Distribution or Use (E.O. 

13211) 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. This rule is not expected to 

affect energy supplies, distribution, or 

use. Therefore, this action is a not a 

significant energy action, and no 

Statement of Energy Effects is required. 

References Cited 

A complete list of all references cited 

in this document is available upon 

request from the U.S. Fish and Wildlife 

Service (see FOR FURTHER INFORMATION

CONTACT). 

List of Subjects in 50 CFR Part 402 

Endangered and threatened species. 

Regulation Promulgation 

Accordingly, we amend part 402, 

subchapter A of chapter IV, title 50 of 

the Code of Federal Regulations, as set 

forth below: 

PART 402—INTERAGENCY 

COOPERATION—ENDANGERED 

SPECIES ACT OF 1973, AS AMENDED 

■ 1. The authority citation for part 402 

continues to read as follows: 

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

■ 2. In § 402.02, revise the definition for 

‘‘Destruction or adverse modification’’ 

to read as follows: 


jstallworth on DSK7TPTVN1PROD with RULES
7226 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

§ 402.02 Definitions. 

* * * * * 

Destruction or adverse modification 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for the conservation of a 

listed species. Such alterations may 

include, but are not limited to, those 

that alter the physical or biological 

features essential to the conservation of 

a species or that preclude or 

significantly delay development of such 

features. 

* * * * * 

Dated: January 29, 2016. 

Michael J. Bean, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks, U.S. Department of 

the Interior. 

Dated: January 29, 2016. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2016–02675 Filed 2–10–16; 8:45 am] 

BILLING CODE 4333–15–P; 3510–22–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Dockets FWS–R9–ES–2011–0104 and 

120206102–5603–03; 4500030114] 

RIN 1018–AX87; 0648–BB82 

Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered 

Species Act 

AGENCY: U.S. Fish and Wildlife Service 

(FWS), Interior; National Marine 

Fisheries Service (NMFS), National 

Oceanic and Atmospheric 

Administration, Commerce. 

ACTION: Notice of final policy. 

SUMMARY: We, the U.S Fish and Wildlife 

Service and the National Marine 

Fisheries Service, (jointly, the 

‘‘Services’’) announce our final policy 

on exclusions from critical habitat 

under the Endangered Species Act. This 

non-binding policy provides the 

Services’ position on how we consider 

partnerships and conservation plans, 

conservation plans permitted under 

section 10 of the Act, Tribal lands, 

national-security and homeland-security 

impacts and military lands, Federal 

lands, and economic impacts in the 

exclusion process. This policy 

complements our implementing 

regulations regarding impact analyses of 

critical habitat designations and is 

intended to clarify expectations 

regarding critical habitat and provide for 

a more predictable and transparent 

critical-habitat-exclusion process. 

DATES: This policy is effective March 14, 

2016. 

ADDRESSES: You may review the 

reference materials and public input 

used in the creation of this policy at 

http://www.regulations.gov at Docket 

No. FWS–R9–ES–2011–0104. Some of 

these materials are also available for 

public inspection at U.S. Fish and 

Wildlife Service, Division of 

Conservation and Classification, MS: 

ES, 5275 Leesburg Pike, Falls Church, 

VA 22041–3803 during normal business 

hours. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Krofta, U.S. Fish and Wildlife 

Service, Division of Conservation and 

Classification, MS: ES, 5275 Leesburg 

Pike, Falls Church, VA 22041–3803; 

telephone 703/358–2171; facsimile 703/ 

358–1735; or Marta Nammack, National 

Marine Fisheries Service, Office of 

Protected Resources, 1315 East-West 

Highway, Silver Spring, MD 20910; 

telephone 301/427–8469; facsimile 301/ 

713–0376. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: Today, we 

publish in the Federal Register three 

related documents that are final agency 

actions. This document is one of the 

three, 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. That regulatory 

definition had been invalidated by 

several courts for being inconsistent 

with the Act. This final rule amends 

title 50 of the Code of Federal 

Regulations (CFR) at part 402. The 

Regulation Identifier Numbers (RIN) are 

1018–AX88 and 0648–BB82, 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’ experience 

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 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. 

• A final policy pertaining to 

exclusions from critical habitat and how 

we may 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 final rule 

amending 50 CFR 424.19 and provides 

for a predictable and transparent 

exclusion process. The policy is 

published under RINs 1018–AX87 and 

0648–BB82 and is set forth below in this 

document. The policy may be found on 

http://www.regulations.gov at Docket 

No. FWS–R9–ES–2011–0104. 

Background 

The National Marine Fisheries Service 

(NMFS) and U.S. Fish and Wildlife 

Service (FWS) are charged with 

implementing the Endangered Species 

Act of 1973, as amended (16 U.S.C. 1531 

et seq.) (Act), the goal of which is to 

provide a means to conserve the 

ecosystems upon which listed species 

depend and to provide a program for 

listed species conservation. Critical 

habitat is one tool in the Act that 

Congress established to achieve species 

conservation. In section 3(5)(A) of the 

Act Congress defined ‘‘critical habitat’’ 

as: 

(i) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the provisions of 

section 4 of this Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and 

(ii) 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 this Act, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species. 

Specifying the geographic location of 

critical habitat helps facilitate 

implementation of section 7(a)(1) by 

identifying areas where Federal agencies 

can focus their conservation programs 

and use their authorities to further the 

purposes of the Act. In addition to 

serving as an educational tool, the 

designation of critical habitat also 

provides a significant regulatory 

protection—the requirement that 

Federal agencies consult with the 


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