[Federal Register Volume 85, Number 174 (Tuesday, September 8, 2020)]
[Proposed Rules]
[Pages 55398-55407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19577]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2019-0115; FF09E23000 FXES1111090FEDR 201]
RIN 1018-BD84
Endangered and Threatened Wildlife and Plants; Regulations for
Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), propose to amend
portions of our regulations that implement section 4 of the Endangered
Species Act of 1973, as amended (Act). The proposed revisions set forth
a process for excluding areas of critical habitat under section 4(b)(2)
of the Act, which mandates our consideration of the impacts of
designating critical habitat and permits exclusions of particular areas
following a discretionary exclusion analysis. We want to articulate
clearly when and how FWS will undertake an exclusion analysis,
including identifying a non-exhaustive list of categories of potential
impacts for FWS to consider. The proposed rulemaking would respond to
applicable Supreme Court case law, reflect agency experience, codify
some current agency practices, and make some modifications to current
agency practice. The intended effect of this proposed rule is to
provide greater transparency and certainty for the public and
stakeholders.
DATES: We will accept comments from all interested parties until
October 8, 2020. Please note that if you are using the Federal
eRulemaking Portal (see ADDRESSES below), the deadline for submitting
an electronic comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2019-0115,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-HQ-ES-2019-0115; U.S. Fish and Wildlife
Service, MS:JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments below for more information).
FOR FURTHER INFORMATION CONTACT: DOI, U.S. Fish and Wildlife Service,
Department of the Interior, Washington, DC 20240, telephone 202/208-
4646. If you use a telecommunications device for the deaf, call the
Federal Relay Service at 800/877-8339.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act of 1973, as amended (``Act''; 16 U.S.C.
1531 et seq.), states that the purposes of the Act are to provide a
means to conserve the ecosystems upon which listed species depend, to
develop a program for the conservation of listed species, and to
achieve the purposes of certain treaties and conventions. 16 U.S.C.
1531(b). Moreover, the Act states that it is the policy of Congress
that the Federal Government will seek to conserve threatened and
endangered species and use its authorities to further the purposes of
the Act. 16 U.S.C. 1531(c)(1).
The Secretaries of the Interior and Commerce (the ``Secretaries'')
share responsibilities for implementing most of the provisions of the
Act. Generally, marine and anadromous species are under the
jurisdiction of the Secretary of Commerce, and all other species are
under the jurisdiction of the Secretary of the Interior. Authority to
administer the Act has been delegated by the Secretary of the Interior
to the Director of FWS and by the Secretary of Commerce to the
Assistant Administrator for the National Marine Fisheries Service
(NMFS) (collectively, the Services). Together, FWS and NMFS administer
the Act via joint regulations in chapter IV of title 50 of the Code of
Federal Regulations (CFR). In addition, each of the Services also has
regulations specific to its own implementation of the Act (located at
50 CFR part 17 for FWS and at 50 CFR parts 222 through 226 for NMFS).
Because this rulemaking, if finalized, would only apply to FWS, the
regulatory requirements proposed in this rulemaking would not require
NMFS to change its processes for consideration of exclusions under
section 4(b)(2) of the Act. Since this rulemaking is solely applicable
to FWS, when we refer to the Secretary, we mean the Secretary of the
Interior.
One of the tools that the Act provides to conserve species is the
designation of critical habitat. The purpose of critical habitat is to
identify the areas that are essential to the species' conservation and
recovery. When FWS lists a species, the Act requires that, to the
maximum extent prudent and determinable, 16 U.S.C. 1533(a), the
Secretary, acting through FWS, designate critical habitat after taking
into consideration the economic impact, the impact on national
security, and any other relevant impact, 16 U.S.C. 1533(b)(2).
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.
Section 4(b)(2) of the Act then provides the Secretary the
authority to exclude any particular area from a critical habitat
designation if the benefits of exclusion outweigh the benefits of
inclusion for that area, so long as excluding it will not result in the
extinction of the species: ``The Secretary shall designate critical
habitat, and make revisions thereto, under subsection (a)(3) on the
basis of the best scientific data available and after taking
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into consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any particular
area as critical habitat. The Secretary may exclude any area from
critical habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific and
commercial data available, that the failure to designate such area as
critical habitat will result in the extinction of the species
concerned.'' 16 U.S.C. 1533(b)(2).
Our implementing regulations in 50 CFR part 424 set forth relevant
definitions (50 CFR 424.02) and describe the standards and procedures
for identifying critical habitat (50 CFR 424.12). On February 11, 2016,
the Services issued a joint policy describing how they implement their
authority to exclude areas from critical habitat designations. ``Policy
Regarding Implementation of Section 4(b)(2) of the Endangered Species
Act,'' 81 FR 7226 (Policy).
This proposed rule carries out Executive Order 13777, ``Enforcing
the Regulatory Reform Agenda,'' and is part of a larger effort by DOI
to identify regulations for repeal, replacement, or modification.
Additionally, we decided to revisit certain language in the
preamble of the Policy, as well as certain statements in the preamble
to the 2013 rule that revised the regulations on the timing of our
economic analyses at 50 CFR 424.19 (August 28, 2013; 78 FR 53058), to
provide clarity to the FWS and the public in light of the Supreme
Court's recent decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361
(2018). At the time we developed the 2013 rule and Policy, the Services
were guided by a line of cases in which courts had held that a decision
by the Services not to exclude a particular area under section 4(b)(2)
of the Act was committed to agency discretion by law and therefore not
subject to judicial review. See, e.g., Bldg. Indus. Ass'n v. U.S. Dept.
of Commerce, 792 F.3d 1027, 1035 (9th Cir. 2015)); Bear Valley Mut.
Water Co. v. Jewell, 790 F.3d 977, 989 (9th Cir. 2015); Cape Hatteras
Access Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30 (D.D.C.
2010). Thus, for example, we stated in the Policy that ``[r]ecent court
decisions have resoundingly upheld the discretionary nature of the
Secretaries' consideration of whether to exclude areas from critical
habitat.'' 81 FR 7226 and 7233 (February 11, 2016) (citing cases listed
above). In our 2013 final rule, we cited Building Industry Ass'n of the
Bay Area v. U.S. Dep't of Commerce, 2012 U.S. Dist. Lexis 170688 (N.D.
Cal. Nov. 30, 2012) as case law that supported our conclusion that
exclusions are discretionary and the discretion not to exclude an area
is judicially unreviewable (78 FR 53072). We also stated in the Policy
that ``although the Services will explain their rationale for not
excluding a particular area, that decision is committed to agency
discretion.'' Id. at 7234.
The Supreme Court has now definitively held, to the contrary, that
decisions not to exclude a particular area are judicially reviewable.
Weyerhaeuser, 139 S. Ct. at 371 (noting that the challenge to the
Service's decision not to exclude a particular area was a ``familiar
one in administrative law that the agency did not appropriately
consider all of the relevant factors that the statute sets forth to
guide the agency in the exercise of its discretion''). Thus, the Court
held that, although a decision not to exclude a particular area is
discretionary, that decision may be reviewed by courts for abuse of
discretion under section 706(2) of the Administrative Procedure Act
(APA, 5 U.S.C 706(2)). 139 S. Ct. at 371. To provide transparency about
how the Secretary intends to exercise his discretion regarding
exclusions under section 4(b)(2), we are proposing this regulation,
which would supersede the regulations at 50 CFR 424.19 and the Policy
with respect to FWS's implementation of the Act. The regulations at 50
CFR 424.19 and the Policy remain in effect with respect to NMFS's
implementation of the Act.
In proposing the specific changes to the regulations in this
document and setting out the accompanying clarifying discussion in this
preamble, FWS is proposing prospective standards only. Nothing in these
proposed regulations is intended to require (if this rule becomes
final) that any proposed rules published prior to the effective date of
any final regulation or any previously finalized critical habitat
designations be reevaluated on the basis of the final regulations.
We are proposing to redesignate 50 CFR part 17, subpart I, as
subpart J, and to add new regulations in 50 CFR part 17, subpart I.
Specifically, we propose to add a new Sec. 17.90. Some aspects of new
Sec. 17.90 are carried over unchanged from the existing joint
regulations at 50 CFR 424.19 and, accordingly, are not discussed
further here. Other aspects of proposed Sec. 17.90 reflect new
regulatory language, and those aspects are the focus of the preamble
discussion below.
Section 4(b)(2) of the Endangered Species Act
As noted above, on February 11, 2016, the Services published the
Policy. That policy provided direction regarding how the Services would
exercise their discretion to exclude areas from critical habitat
designations. Since issuance of the Policy, FWS has concluded that
adding some elements of the policy to the implementing regulations
would be more effective in guiding agency activities and would provide
greater transparency and certainty to the public and stakeholders. In
addition, the proposed regulations would put into effect some
differences in our approach relative to what was outlined in the
Policy, including an information standard for when we enter into a
discretionary weighing analysis, a clarification of how considerations
for exclusions will be conducted for Federal lands, and an approach to
assigning the weight of the benefits of inclusion or exclusion of any
particular areas designated as critical habitat. NMFS will continue to
implement the Policy and regulations at 50 CFR. 424.19.
In 1982, Congress added section 4(b)(2) to the Act, both to require
the Secretaries to consider the relevant impacts of designating
critical habitat and to provide a means for minimizing negative impacts
of designation by excluding, in appropriate circumstances, particular
areas from a designation. The first sentence of section 4(b)(2) sets
out a mandatory requirement that the Secretaries consider the economic
impact, impact on national security, and any other relevant impacts
prior to designating an area as part of a critical habitat designation.
As required by this sentence, FWS always considers those impacts, for
every designation of critical habitat. The statute does not prescribe
how FWS should take into consideration these impacts. This proposed
rule provides the framework for the role that FWS's consideration of
the economic impact, impact on national security, and any other
relevant impacts will play when identifying any potential exclusions
from designations of critical habitat. Although the term ``homeland
security'' was not in common usage in 1982, the Services concluded in
the joint Policy that Congress intended that ``national security''
includes what we now refer to as ``homeland security.'' 81 FR 7227;
2016.
The second sentence of section 4(b)(2) provides the authority for a
process by which the Secretaries may elect to
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determine whether to exclude an area from the designation by performing
an exclusion analysis. FWS's consideration of impacts under the first
sentence of section 4(b)(2) informs the decision whether to engage in
the exclusion analysis under the second sentence of section 4(b)(2).
Conducting an exclusion analysis under section 4(b)(2) involves
balancing or weighing the benefits of excluding a particular area from
a critical habitat designation against the benefits of including that
area in the designation. The Act provides that if the benefits of
exclusion outweigh the benefits of inclusion, the Secretary may exclude
the particular area, unless the Secretary determines that the exclusion
will result in the extinction of the species concerned.
Overview of Proposed Regulatory Provisions on Discretionary 4(b)(2)
Exclusion Analyses
The language of proposed Sec. 17.90(a) carries over the two
sentences in the existing interagency regulation at 50 CFR 424.19(a)
without change. It then makes clear that, in addition to summarizing
the draft economic analysis, the proposed rule will identify known
national security and other relevant impacts of the proposed
designation, and identify areas that the Secretary has reason to
consider for exclusion and explain why.
We also propose to include a non-exhaustive list of categories of
potential impacts that the Secretary will identify, when known, at the
proposed rule stage. We note that these impacts are the same as those
that the Secretary will consider, as appropriate, when conducting the
mandatory consideration of any other relevant impacts as expressed in
the first sentence of section 4(b)(2) of the Act. Including this list
of categories for consideration provides greater transparency and
clarity to the public and stakeholders.
Making clear to the public the areas that the Secretary has reason
to consider excluding allows the public not only to submit comments on
the benefits of exclusion and inclusion in general, but to focus their
comments on those benefits as they relate to the specific areas most
likely to be considered for exclusion. Additionally, the regulation
makes clear that, at any time during the process of designating
critical habitat, the Secretary may still consider additional
exclusions, including areas that were not identified in the proposed
rule. This codifies and makes transparent the Secretary's existing
practice and is intended to allow commenters to provide information
specific to those areas that the Secretary anticipates considering for
exclusion.
We propose to add Sec. 17.90(b), which would carry over the
language of the existing interagency regulation at 50 CFR 424.19(b)
that already requires the Secretary to consider the probable economic,
national security, and other relevant impacts of the designation.
We propose to add Sec. 17.90(c), which would carry over the
language of the existing interagency regulation at 50 CFR 424.19(c) but
modify the language to describe how the Secretary intends to exercise
his discretion and articulate clearly the factors that will prompt the
Secretary to enter into the discretionary exclusion analysis under
section 4(b)(2). Including this provision in the regulations will
clarify and codify the process and standards underlying exclusion
analyses and decisions. In addition, codifying certain aspects of the
nonbinding Policy into the regulations provides greater transparency
and predictability by making those aspects of the Policy binding.
Proposed paragraph (c)(1) reiterates that the Secretary has
discretion whether to enter into an exclusion analysis under section
4(b)(2) of the Act. Proposed paragraph (c)(2) describes the two
circumstances in which FWS will conduct an exclusion analysis for a
particular area: Either (1) when a proponent of excluding the area has
presented credible information in support of the request; or (2) where
such information has not been presented, when the Secretary exercises
his or her discretion to evaluate any particular area for potential
exclusion. In Weyerhaeuser, the Supreme Court held that decisions not
to exclude areas from critical habitat designations are judicially
reviewable under the abuse-of-discretion standard. The Court reasoned
that, although the use of the word ``may'' in section 4(b)(2) clearly
confers discretion, that ``does not segregate'' the decision not to
exclude from the procedures mandated by the Act. Among those mandated
procedures, the Court referred specifically to the requirement in
section 4(b)(2) to consider relevant impacts and the APA requirement to
consider all of the relevant factors. Because a decision not to
undertake a discretionary exclusion analysis precludes the Secretary
from excluding any areas from the designation, FWS therefore intends to
document the rational basis for such decisions. FWS also intends that
this documentation of the exclusion analysis will demonstrate
compliance with mandated procedures.
Proposed paragraph (d) describes how FWS would undertake an
exclusion analysis once the Secretary exercises the discretion to enter
into one. We recognize that assigning weights to different impacts or
benefits requires expertise. Therefore, we propose to assign weights of
benefits of inclusion and exclusion based on who has the relevant
expertise. Proposed paragraphs (d)(1) through (d)(4) describe factors
that FWS considers with respect to conservation plans or agreements,
tribal implications, national-security implications, and Federal lands,
in parallel to paragraphs 2 through 6 of the Policy.
In proposed paragraph (e) the Secretary would exercise the broad
discretion given under section 4(b)(2) by establishing as a principle
that FWS will exclude areas whenever it determines that the benefits of
exclusion outweigh the benefits of inclusion, as long as exclusion will
not result in the extinction of the species.
Framework for Considering an Exclusion and Conducting a Discretionary
4(b)(2) Exclusion Analysis
When FWS concludes that a critical habitat designation is prudent
and determinable for species listed under the Act, FWS must follow the
statutory and regulatory provisions to designate critical habitat. The
Act's language makes clear that biological considerations drive the
initial step of identifying critical habitat. Section 4(b)(2) expressly
requires designations to be made based on the best scientific data
available. In accordance with the Court's decision in Weyerhaeuser, the
process begins by identifying a species' habitat. Next, the Act's
definition of ``critical habitat'' requires the Secretary to identify
those areas of habitat occupied by the species at the time of listing
that contain physical or biological features that are essential to the
conservation of the species and that may require special management
considerations or protection. FWS also identifies the specific areas of
unoccupied habitat that are essential to the conservation (i.e.,
recovery) needs of the species. Implementing regulations at 50 CFR
424.12 specify the criteria for designation of critical habitat.
If the Secretary enters into a discretionary 4(b)(2) exclusion
analysis, the Secretary has broad discretion as to what factors to
consider as benefits of inclusion and benefits of exclusion, and the
weight to assign to each factor. In a 4(b)(2) exclusion analysis, we
determine if the benefits of exclusion outweigh the benefits of
inclusion for a particular area. If so, the statute provides the
[[Page 55401]]
Secretary with discretion to exclude that area, unless the Secretary
determines on the basis of the best scientific and commercial data
available that failure to designate the area as critical habitat will
result in the extinction of the species concerned. 16 U.S.C.
1533(b)(2).
Proposed Approach To Determining Whether To Conduct a Discretionary
Exclusion Analysis
We have not previously articulated our general approach to
determining whether to exercise the discretion afforded under the
statute to undertake the optional weighing process under the second
sentence of 4(b)(2) of the Act. Although the Policy identified specific
factors to consider if a discretionary exclusion analysis is conducted,
it stopped short of articulating more generally how we approach the
determination to undertake that analysis. We now propose to describe
specifically what ``other relevant impacts'' may include and articulate
how we approach determining whether we will undertake the discretionary
exclusion analysis. We therefore propose paragraph (b) as set forth in
the rule portion of this document.
Consistent with the first sentence of section 4(b)(2), proposed
paragraph (b) sets out a mandatory requirement that FWS consider the
economic impact, impact on national security, and any other relevant
impacts prior to designating an area as part of a critical habitat
designation. These economic impacts may include, for example, the
economy of a particular area, productivity, and creation or elimination
of jobs, opportunity costs potentially arising from critical habitat
designation, and potential benefits from a potential designation such
as outdoor recreation or ecosystem services. The proposed regulations
would provide categories of ``other relevant impacts'' that we may
consider, including: Public health and safety; community interests; and
the environment (such as increased risk of wildfire or pest and
invasive species management). This list is not an exhaustive list of
the types of impacts that may be relevant in a particular case; rather,
it provides additional clarity by identifying some additional types of
impacts that may be relevant. Our discussion of proposed new paragraph
(d), below, describes specific considerations related to Tribes,
States, and local governments; national security; conservation plans,
agreements, or partnerships; and Federal lands.
After we consider the relevant impacts, we must determine whether
to undertake a discretionary exclusion analysis. We propose paragraph
(c) to provide clarity and transparency about how the Secretary intends
to exercise his discretion regarding when he will enter into the
discretionary exclusion analysis under section 4(b)(2).
Proposed paragraph (c)(1) states the Secretary has discretion to
enter into a discretionary exclusion analysis subject to the provisions
of proposed paragraph (c)(2).
Under proposed paragraph (c)(2), we propose to always enter into a
discretionary exclusion analysis to compare the benefits of inclusion
and the benefits of exclusion of particular areas for which credible
information supporting exclusion is presented. As part of the public
notice-and-comment process, FWS routinely receives information from the
public regarding any probable economic, national security, or other
relevant impacts of designating any area that may be included in the
final designation and the benefits of including or excluding areas that
exhibit these impacts. The term ``credible information'' refers to
information that constitutes a reasonably reliable indication regarding
the existence of a meaningful economic or other relevant impact
supporting a benefit of exclusion for a particular area. In evaluating
whether a proponent has provided ``credible information'' in support of
a claim that an area should be excluded, we look at two factors--
whether the proponent has provided factual information in support of
the claimed impacts and whether the claimed impacts may be meaningful
for purposes of an exclusion analysis. The information provided by
submitters or proponents could address either the benefits of
exclusion, or the benefits of inclusion, and we do not expect
proponents to conduct a comparison of the impacts relative to the
conservation value of the specific area. The ``credible information''
standard would be relevant only to the question of whether to undertake
an analysis--meeting this standard would not indicate that the area
will in fact be excluded from the designation.
The second pathway to an exclusion analysis for a particular area
would be if the Secretary decides to exercise his or her discretion to
do so. See proposed paragraph (c)(2)(ii) in the rule portion of this
document. In either case, FWS intends to document the basis for any
decision not to undertake an exclusion analysis. An explanation of the
decision not to undertake an exclusion analysis for a particular area
will be included in the final determination regarding critical habitat
for the species.
Proposed Approach To Conducting Discretionary Exclusion Analyses
We propose to add a new paragraph (d) as set forth in the proposed
regulatory text. Under proposed paragraph (d), we describe how FWS will
undertake an exclusion analysis once the Secretary exercises the
discretion to conduct that analysis. We recognize that assigning weight
to different impacts or benefits requires expertise. Therefore, we
propose to assign weights of benefits of inclusion and exclusion based
on who has the relevant expertise (e.g., a commenter on the proposed
designation of critical habitat or FWS). Quantification of benefits, if
appropriate and feasible, will be conducted and explained on a case-by-
case basis in individual critical habitat rulemakings.
With respect to benefits that are outside FWS' expertise and as
described in proposed paragraph (d)(1), the Secretary would assign
weights to benefits consistent with expert or firsthand information,
unless the Secretary has knowledge or material evidence that rebuts
that information. Expert or firsthand information should describe the
implications of designating a particular area as critical habitat and
include supporting documentation of the nature, scope, and magnitude of
the impacts and the degree to which designation or exclusion would
affect interested parties. Additionally, the impacts described must be
attributable to the incremental effect of the designation of critical
habitat, not attributable to the listing of the species. Under
paragraph (a), if finalized, FWS would continue to make available for
public comment the draft economic analysis of the critical habitat
designation at the time of the proposed critical habitat designation.
This information may be used in weighing the benefits of including or
excluding a particular area.
However, in some instances the Secretary may have knowledge or
material evidence that rebuts the information provided by experts or
sources with firsthand knowledge. This information could include FWS'
expert judgment about the likely effects of designating critical
habitat upon the need to engage in, or outcomes of, consultations under
section 7 of the Act, or other information available to FWS, such as
the information in the economic analysis, as informed by public input.
The Service will continue to base critical habitat designations on the
best available information. Therefore, if the Secretary has additional
knowledge or material evidence that qualifies as the
[[Page 55402]]
best information available, the Secretary would assign weights of the
benefits of inclusion or exclusion consistent with the available
information from experts, firsthand knowledge, and the best available
information that the Secretary may have to rebut that information.
Proposed subparagraphs in paragraph (d)(1) identify a non-
exhaustive list of categories of impacts that are outside the scope of
FWS' expertise. Even though some of the categories on this list refer
to ``nonbiological impacts,'' we recognize that many sources outside
FWS also have information and expertise regarding biological impacts.
FWS would consider that information or expertise in the weighing of
benefits of inclusion or exclusion of particular areas.
Tribal Lands
Proposed paragraph (d)(1)(i) addresses nonbiological impacts
identified by federally recognized Indian Tribes. Executive Orders,
Secretarial Orders, and policies guide how FWS works with federally
recognized Indian Tribes. These guidance documents generally confirm
our trust responsibilities to Tribes, recognize that Tribes have
sovereign authority to control Tribal lands, emphasize the importance
of developing partnerships with Tribal governments, and direct FWS to
consult with Tribes on a government-to-government basis.
Secretarial Order 3206, American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act (June 5,
1997) (S.O. 3206), is the most comprehensive of the various guidance
documents related to Tribal relationships and Act implementation, and
it provides the most detail directly relevant to the designation of
critical habitat. In light of this order, we would undertake a
discretionary 4(b)(2) exclusion analysis of any Tribal lands included
in a potential designation prior to finalizing a designation of
critical habitat and would consider all relevant available information,
including Tribal expertise, firsthand information, and traditional
ecological knowledge. Neither S.O. 3206 nor these proposed revisions
preclude FWS from designating Tribal lands or waters as critical
habitat.
State and Local Governments
Proposed paragraph (d)(1)(ii) addresses nonbiological impacts
identified by State or local governments. It has been the experience of
FWS that in some cases a designation of critical habitat may affect
State or local government operations in a material way. For example, a
State or local government may be in the planning stages of a public-
works project such as a hospital or school and may have concerns that a
designation of critical habitat would delay or preclude their project.
This proposed regulatory provision specifically recognizes that,
because these projects and the importance they may have to the
community are not within FWS's expertise, the weight that the Secretary
assigns to the benefits of designating or excluding specific areas
based on impacts to these projects or plans should be consistent with
the information provided by the State or local government, unless we
have rebutting knowledge or material information. Additionally, State
and local governments may have credible information regarding potential
economic or employment losses from a proposed critical habitat
designation. The FWS will consider such information as part of any
proposed critical habitat exclusion.
Impacts on National Security and Homeland Security
Proposed paragraph (d)(1)(iii) addresses impacts based on national-
security or homeland-security implications identified by the Department
of Defense, Department of Homeland Security, or any other Federal
agency responsible for national security or homeland security. Section
4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)), as revised in
2003, provides: The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense (DoD), or designated for its use, that are
subject to an integrated natural resources management plan (INRMP)
prepared under section 101 of the Sikes Act Improvement Act of 1997 (16
U.S.C. 670a), if the Secretary determines in writing that such plan
provides a benefit to the species for which critical habitat is
proposed for designation. Section 4(a)(3)(B)(i) of the Act does not
cover all DoD lands or areas that are subject to national-security
concerns (e.g., activities on lands not owned or managed by DoD;. When
designating critical habitat under section 4(b)(2) of the Act, the
Secretary is required to consider impacts on national security on lands
or areas not covered by section 4(a)(3)(B)(i).
Federal Lands
Proposed paragraph (d)(1)(iv) addresses Federal lands where there
are non-Federal entities that have a permit, lease, contract, or other
authorization for use. While we continue to recognize that Federal land
managers have unique obligations under the Act, we are reversing the
2016 Policy's prior position that we generally do not exclude Federal
lands from designations of critical habitat. We recognize that first,
Congress declared its policy that ``all Federal departments and
agencies shall seek to conserve endangered species and threatened
species and shall utilize their authorities in furtherance of the
purposes of this Act'' (section 2(c)(1)). Second, all Federal agencies
have responsibilities under section 7 of the Act to carry out programs
for the conservation of listed species and to ensure that their actions
are not likely to jeopardize the continued existence of listed species
or result in the destruction or adverse modification of designated
critical habitat. However, there is nothing in the Act that states that
Federal lands shall be exempted from the consideration of a
discretionary 4(b)(2) analysis simply because land is managed by the
Federal government. Thus, proposed paragraph (d)(1)(iv) allows for
consideration of an exclusion analysis on lands managed by the Federal
government.
With regard to consideration of an exclusion based on economic or
other relevant considerations, under the Act, the costs that a critical
habitat designation may impose on Federal agencies can be divided into
two types: (1) The additional administrative or transactional costs
associated with the consultation process with a Federal agency, and (2)
the costs to Federal agencies and other affected parties, including
applicants for Federal authorizations (e.g., permits, licenses, leases,
contracts), of any project modifications necessary to avoid destruction
or adverse modification of critical habitat.
In contrast to the Policy, we now will consider the avoidance of
the administrative or transactional costs as a benefit of exclusion of
a particular area of Federal land. We did acknowledge then, and restate
now, that we will consider the extent to which consultation would
produce an outcome that has economic or other impacts, such as by
requiring project modifications and additional conservation measures by
the Federal agency or other affected parties. While we acknowledge that
Federal lands are important areas to the conservation of species
habitat, we do not wish to foreclose the potential to exclude areas
under Federal ownership. Therefore, we will now consider whether to
exclude (and depending on the outcome of that analysis, may exclude)
Federal lands on which non-Federal entities have a
[[Page 55403]]
permit, lease, contract or other authorization for use where the
benefits of exclusion outweigh the benefits of inclusion, so long as
the exclusion of a particular area does not cause extinction of a
species.
Economic Impacts and Other Relevant Impacts
Proposed paragraph (d)(2) addresses economic impacts or other
relevant impacts as identified in proposed paragraph (b). Economic
impacts may play an important role in the discretionary 4(b)(2)
exclusion analysis under the second sentence of section 4(b)(2). FWS
always considers the probable incremental economic impacts of the
designation of critical habitat. When undertaking a discretionary
4(b)(2) exclusion analysis with respect to a particular area, FWS would
weigh the economic benefits of exclusion (and any other benefits of
exclusion) against any benefits of inclusion (primarily the
conservation value of designating the area). The nature of the probable
incremental economic impacts, and not necessarily a particular
threshold level, should trigger considerations of exclusions based on
probable incremental economic impacts. For example, if an economic
analysis indicates high probable incremental impacts of designating a
particular critical habitat unit of lesser conservation value (relative
to other areas potentially included in the designation), FWS may
consider excluding that particular unit.
Other relevant impacts may also result in exclusions. In some
circumstances, the Secretary may exclude particular areas based on
specific ``community impacts'' as a result of the designation of
critical habitat. FWS wants to ensure, through weighing the benefits of
exclusion against the benefits of inclusion, that the designation of
critical habitat in areas where community development projects are
expected or planned to occur does not unnecessarily disrupt those
projects. We would consider excluding from a proposed critical habitat
designation a particular area where there is a planned community
development project, such as a school or hospital, if the benefits of
exclusion outweigh the benefits of inclusion. In this instance, the
benefits of exclusion may include avoidance of additional permitting
requirements, time delays, or additional cost requirements to the
community development project (which may in turn delay or diminish the
benefits attributable to the project) due to the designation of
critical habitat. When analyzing whether to exclude such an area, the
Secretary will weigh such impacts relative to the conservation value of
that area.
For benefits of inclusion or exclusion based on impacts that fall
within the scope of FWS's expertise, the Secretary will assign the
weight given to those benefits in light of FWS's expertise. FWS's
expertise includes, but is not limited to, implementation and
enforcement of the Act; identification of the biological needs of
species; identification of threats to species and their habitats;
identification of important or essential components of habitat; species
protection measures; and the process and outcomes of interagency
consultations under section 7 of the Act.
Conservation Plans or Agreements and Partnerships, in General
FWS sometimes excludes specific areas from critical habitat
designations based on the existence of private or other non-Federal
conservation plans or agreements and their attendant partnerships when
the benefits of exclusion outweigh the benefits of inclusion. A
conservation plan or agreement describes actions that are designed to
provide for the conservation needs of a species and its habitat and may
include actions to minimize or mitigate negative effects on the species
caused by activities on or adjacent to the area covered by the plan.
Conservation plans or agreements can be developed by private entities
with no involvement of the FWS, or in partnership with FWS. In the case
of a habitat conservation plan (HCP), safe harbor agreement (SHA), or a
candidate conservation agreement with assurances (CCAA), a plan or
agreement is developed in partnership with FWS for the purposes of
obtaining a permit under section 10 of the Act to authorize any take of
listed species caused incidentally by the activities described in the
plan or agreement.
Conservation Plans Related to Permits Under Section 10 of the Act
Proposed paragraph (d)(3) addresses particular areas covered by
conservation plans, agreements, or partnerships that have been
permitted under section 10 of the Act. HCPs for incidental take permits
under section 10(a)(1)(B) of the Act provide for partnerships with non-
Federal entities to minimize and mitigate impacts to listed species and
their habitat. In most cases, HCP permittees commit to do more for the
conservation of the species and their habitats on their non-Federal
lands than designation of critical habitat would provide alone. We
place great value on the partnerships that are developed during the
preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
at the conclusion of the agreement.
FWS's expertise includes anticipating the extent to which permitted
CCAAs, SHAs, and HCPs provide for the conservation of the species. When
we undertake a discretionary 4(b)(2) exclusion analysis, we will always
consider whether to exclude areas covered by a permitted CCAA/SHA/HCP,
and we anticipate consistently excluding such areas from a designation
of critical habitat if incidental take caused by the activities in
those areas is covered by the permit under section 10 of the Act and
the CCAA/SHA/HCP meets all of the following conditions:
1. The permittee is properly implementing the conservation plan or
agreement and is expected to continue to do so for the term of the
agreement. A CCAA/SHA/HCP is properly implemented if the permittee is,
and has been, fully implementing the commitments and provisions in the
CCAA/SHA/HCP, Implementing Agreement, and permit.
2. The species for which critical habitat is being designated is a
covered species in the conservation plan or agreement, or very similar
in its habitat requirements to a covered species. The recognition that
FWS extends to such an agreement depends on the degree to which the
conservation measures undertaken in the CCAA/SHA/HCP would also protect
the habitat features of the similar species.
3. The conservation plan or agreement specifically addresses the
habitat of the species for which critical habitat is being designated
and meets the conservation needs of the species in the planning area.
We will undertake a case-by-case analysis to determine whether
these conditions are met and, as with other conservation plans, whether
the benefits of exclusion outweigh the benefits of inclusion.
The benefits of excluding lands with CCAAs, SHAs, or properly
implemented
[[Page 55404]]
HCPs that have been permitted under section 10 of the Act include
relieving landowners, communities, and counties of any additional
regulatory burdens that might be imposed as a result of the critical
habitat designation. A related benefit of exclusion is the unhindered,
continued ability to maintain existing partnerships, as well as the
opportunity to seek new partnerships with potential plan participants,
including States, counties, local jurisdictions, conservation
organizations, and private landowners. Together, these entities can
implement conservation actions that FWS would be unable to accomplish
without their participation. These partnerships can lead to additional
CCAAs, SHAs, and HCPs. This is particularly important because HCPs
often cover a wide range of species, including listed plant species
(for which there is no general take prohibition under section 9 of the
Act), and species that are not federally listed. Neither of these
categories of species are likely to be protected from development or
other impacts in the absence of HCPs.
As is the case with conservation plans generally, the protections
that a CCAA, SHA, or HCP provides to habitat can reduce the benefits of
including the covered area in the critical habitat designation.
However, even in light of such reduction, there may still be
significant benefits of critical habitat designation. As such, FWS will
weigh the benefits of inclusion against the benefits of exclusion
(usually the maintenance or fostering of partnerships that provide
existing conservation benefits or may result in future conservation
actions).
If a CCAA, SHA, or HCP is still under development when we undertake
a discretionary 4(b)(2) exclusion analysis, we will evaluate these
draft plans under the framework of general plans and partnerships (see
Conservation Plans Not Related to Permits Under Section 10 of the Act,
below). In other words, we will consider factors, such as partnerships
that have been developed during the preparation of draft CCAAs, SHAs,
and HCPs, and broad public benefits, such as encouraging the
continuation of current, and development of future, conservation
efforts with non-Federal partners, as possible benefits of exclusion.
However, we will generally give little weight to unrealized promises of
future conservation actions in draft CCAAs, SHAs, and HCPs that have
not been permitted. Therefore, we anticipate finding that such promises
will not reduce the benefits of inclusion in the discretionary 4(b)(2)
exclusion analysis, even if such promises could, if realized, benefit
the species for which a critical habitat designation is proposed.
Conservation Plans Not Related to Permits Under Section 10 of the Act
Proposed paragraph (d)(4) addresses particular areas covered by
conservation plans, agreements, or partnerships that have not been
authorized by a permit under section 10 of the Act. We evaluate a
variety of factors to determine how the benefits of exclusion and the
benefits of inclusion of a particular area are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant partnerships when we undertake a
discretionary 4(b)(2) exclusion analysis. FWS' expertise includes
anticipating the extent to which the conservation plans, agreements, or
partnerships provide protection or conservation value for the species.
The list below is intended to illustrate the types of factors that FWS
will use when evaluating non-permitted plans. This list is not
exclusive or absolute. Not all factors may apply to every instance of
evaluating a plan or partnership; and the listed factors are not
requirements for plans or partnerships to be considered for exclusion.
i. The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of benefits
expected from the plan, agreement, or partnerships;
ii. The extent of public participation in the development of the
conservation plan;
iii. The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate;
iv. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.) reviews or similar reviews occurred, and the nature of any
such reviews;
v. The demonstrated implementation and success of the chosen
mechanism;
vi. The degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species;
vii. Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented; and
viii. Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
FWS will typically consider whether a plan or agreement has
previously been subjected to public comment, agency review, and NEPA
review or similar review processes, because these kinds of processes
may indicate the degree of critical analysis the plan or agreement has
already received. For example, if a particular plan was developed by a
county-level government pursuant to environmental review processes
provided by State law or regulation, FWS would likely give greater
weight to that plan in its evaluation.
Public Comments
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. Comments must be
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are
not postmarked, by the date specified in DATES.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting documentation
we used in preparing this proposed rule, will be available for public
inspection on http://www.regulations.gov.
Because we will consider all comments and information received
during the comment period, our final regulation may differ from this
proposal in light of our experience in administering the Act,
consistent with legal requirements.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. OIRA has determined that
this rule is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for
[[Page 55405]]
achieving regulatory ends. E.O. 13563 directs agencies to consider
regulatory approaches that reduce burdens and maintain flexibility and
freedom of choice for the public where these approaches are relevant,
feasible, and consistent with regulatory objectives. E.O. 13563 further
emphasizes that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements. This proposed rule is consistent
with E.O. 13563, and in particular with the requirement of
retrospective analysis of existing rules, designed ``to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives.''
Executive Order 13771
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 because this proposed rule is expected to
result in no more than de minimis costs.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency, or his designee, certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. We certify that, if adopted as
proposed, this proposed rule would not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale.
This rulemaking responds to applicable Supreme Court case law and
revises and clarifies procedures for FWS regarding designating critical
habitat under the Endangered Species Act to reflect agency experience
and, with minor changes, codifies current agency practices. The
proposed changes to these regulations, if finalized, are unlikely to
result in any critical habitat designation having a larger scope.
FWS is the only entity that is directly affected by this rule
because FWS is the only entity that will be designating critical
habitat under the Endangered Species Act in accordance with this
portion of the CFR. No external entities, including any small
businesses, small organizations, or small governments, will experience
any economic impacts directly from this rule.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would not impose a cost of $100 million or
more in any given year on local or State governments or private
entities. A Small Government Agency Plan is not required. As explained
above, small governments would not be affected because the proposed
rule would not place additional requirements on any city, county, or
other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action''' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
directly affect private property, nor would it cause a physical or
regulatory taking. It would not result in a physical taking because it
would not effectively compel a property owner to suffer a physical
invasion of property. Further, the proposed rule would not result in a
regulatory taking because it would not deny all economically beneficial
or productive use of the land or aquatic resources and it would
substantially advance a legitimate government interest (conservation
and recovery of endangered species and threatened species) and would
not present a barrier to all reasonable and expected beneficial use of
private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to factors for designation
of critical habitat under the Endangered Species Act, and would not
have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify factors for
designation of critical habitat under the Endangered Species Act.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we are considering possible effects
of this proposed rule on federally recognized Indian Tribes. FWS has
reached a preliminary conclusion that the changes to these implementing
regulations are general in nature and do not directly affect specific
species or Tribal lands. These proposed regulations modify certain
aspects of the critical habitat designation processes that we have been
implementing in accordance with previous guidance and policies,
including the 2008 DOI SOL M-opinion and the final Policy. These
regulatory revisions directly affect only FWS, and with or without
these revisions FWS would be obligated to continue to designate
critical habitat based on the best available data. Therefore, we
conclude that these proposed regulations do not have ``tribal
implications'' under section 1(a) of E.O. 13175, and therefore formal
government-to-government consultation is not required by E.O. 13175 and
related policies of the Department of the Interior. We will continue to
collaborate with Tribes on issues related to federally listed species
and their habitats and work with them as we implement the provisions of
the Act. See Secretarial Order 3206 (``American Indian Tribal Rights,
Federal-Tribal
[[Page 55406]]
Trust Responsibilities, and the Endangered Species Act,'' June 5,
1997).
Paperwork Reduction Act
This proposed rule does not contain any new collections of
information that require approval by the OMB under the Paperwork
Reduction Act. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
National Environmental Policy Act
We are analyzing this proposed regulation in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), and the
Department of the Interior Manual (516 DM 8). This proposed rulemaking
in part responds to applicable Supreme Court case law and revises
procedures for FWS regarding designating critical habitat under the
Endangered Species Act.
As a result, we anticipate that the categorical exclusion found at
43 CFR 46.210(i) likely applies to the proposed regulation changes. At
43 CFR 46.210(i), the Department of the Interior has found that the
following categories of actions would not individually or cumulatively
have a significant effect on the human environment and are, therefore,
categorically excluded from the requirement for completion of an
environmental assessment or environmental impact statement: ``Policies,
directives, regulations, and guidelines: That are of an administrative,
financial, legal, technical, or procedural nature.'' However, as a
result of public comments received, the final rule may differ from this
proposed rule and our analysis under NEPA may also differ from the
proposed rule. We invite public comment regarding our initial
determination under NEPA and we will complete our analysis, in
compliance with NEPA, before finalizing this regulation.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
and use. Therefore, this action is a not a significant energy action,
and no Statement of Energy Effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you believe that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that you believe are unclearly written, identify any sections or
sentences that you believe are too long, and identify the sections
where you believe lists or tables would be useful.
Authority
We issue this proposed rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons discussed in the preamble, the U.S. Fish and
Wildlife Service proposes to amend part 17 of chapter I, title 50 of
the Code of Federal Regulations as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Subpart J--[Redesignated as Subpart K]
0
2. Subpart J, consisting of Sec. Sec. 17.100 through 17.199, is
redesignated as subpart K.
Subpart I--[Redesignated as Subpart J]
0
3. Subpart I, consisting of Sec. Sec. 17.94 through 17.99, is
redesignated as subpart J.
0
4. New subpart I, consisting of Sec. 17.90, is added to read as
follows:
Subpart I--Considerations of Impacts and Exclusions from Critical
Habitat
Sec. 17.90 Impact analysis and exclusions from critical habitat.
(a) At the time of publication of a proposed rule to designate
critical habitat, the Secretary will make available for public comment
the draft economic analysis of the designation. The draft economic
analysis will be summarized in the Federal Register notice of the
proposed designation of critical habitat. The Secretary will also
identify any national security or other relevant impacts that the
Secretary determines are contained in a particular area of proposed
designation. Based on the best information available regarding
economic, national security, and other relevant impacts, the proposed
designation of critical habitat will identify the areas that the
Secretary has reason to consider for exclusion and explain why. The
identification of areas in the proposed rule that the Secretary has
reason to consider for exclusion is neither binding nor exhaustive.
``Economic impacts'' may include, but are not limited to, the economy
of a particular area, productivity, jobs, and any opportunity costs
arising from the critical habitat designation (such as those
anticipated from reasonable and prudent alternatives that may be
identified through a section 7 consultation) as well as possible
benefits and transfers (such as outdoor recreation and ecosystem
services). ``Other relevant impacts'' may include, but are not limited
to, impacts to Tribes, States, local governments, public health and
safety, community interests, the environment (such as increased risk of
wildfire or pest and invasive species management), federal lands, and
conservation plans, agreements, or partnerships. The Secretary will
consider impacts at a scale that the Secretary determines to be
appropriate and will compare the impacts with and without the
designation. Impacts may be qualitatively or quantitatively described.
(b) Prior to finalizing the designation of critical habitat, the
Secretary will consider the probable economic, national security, and
other relevant impacts of the designation upon proposed or ongoing
activities.
(c)(1) Subject to paragraph (c)(2) of this section, the Secretary
has discretion as to whether to conduct an exclusion analysis under 16
U.S.C. 1533(b)(2).
(2) The Secretary will conduct an exclusion analysis when:
[[Page 55407]]
(i) The proponent of excluding a particular area (including but not
limited to permittees, lessees or others with a permit, lease or
contract on federally managed lands) has presented credible information
regarding the existence of a meaningful economic or other relevant
impact supporting a benefit of exclusion for that particular area; or
(ii) The Secretary otherwise decides to exercise discretion to
evaluate any particular area for possible exclusion.
(d) When the Secretary conducts a discretionary exclusion analysis
pursuant to paragraph (c) of this section, the Secretary shall weigh
the benefits of including or excluding particular areas in the
designation of critical habitat, according to the following principles:
(1) When analyzing the benefits of including or excluding any
particular area based on impacts identified by experts in, or by
sources with firsthand knowledge of, areas that are outside the scope
of the Service's expertise, the Secretary will assign weight to those
benefits consistent with the expert or firsthand information, unless
the Secretary has knowledge or material evidence that rebuts that
information. Impacts that are outside the scope of the Service's
expertise include, but are not limited to:
(i) Nonbiological impacts identified by federally recognized Indian
Tribes, consistent with all applicable Executive and Secretarial
orders;
(ii) Nonbiological impacts identified by State or local
governments; and
(iii) Impacts based on national security or homeland security
implications identified by the Department of Defense, Department of
Homeland Security, or any other Federal agency responsible for national
security or homeland security;
(iv) Nonbiological impacts identified by a permittee, lessee, or
contractor applicant for a permit, lease, or contract on Federal lands.
(2) When analyzing the benefit of including or excluding any
particular area based on economic impacts or other relevant impacts
described in paragraph (b) of this section, the Secretary will weigh
such impacts relative to the conservation value of that particular
area. For benefits of inclusion or exclusion based on impacts that fall
within the scope of the Service's expertise, the Secretary will assign
weight to those benefits in light of the Service's expertise.
(3) When analyzing the benefits of including or excluding
particular areas covered by conservation plans, agreements, or
partnerships that have been authorized by a permit under section 10 of
the Act, the Secretary will consider the following factors:
(i) Whether the permittee is properly implementing the conservation
plan or agreement;
(ii) Whether the species for which critical habitat is being
designated is a covered species in the conservation plan or agreement;
and
(iii) Whether the conservation plan or agreement specifically
addresses the habitat of the species for which critical habitat is
being designated and meets the conservation needs of the species in the
planning area.
(4) When analyzing the benefits of including or excluding
particular areas covered by conservation plans, agreements, or
partnerships that have not been authorized by a permit under section 10
of the Act, factors that the Secretary may consider include, but are
not limited to:
(i) The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of the
benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the
conservation plan.
(iii) The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate.
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) reviews or similar reviews occurred, and the nature of
any such reviews.
(v) The demonstrated implementation and success of the chosen
mechanism.
(vi) The degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species.
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
(e) If the Secretary conducts an exclusion analysis under paragraph
(c) of this section, and if the Secretary determines that the benefits
of excluding a particular area from critical habitat outweigh the
benefits of specifying that area as part of the critical habitat, then
the Secretary shall exclude that area, unless the Secretary determines,
based on the best scientific and commercial data available, that the
failure to designate that area as critical habitat will result in the
extinction of the species concerned.
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks Department of the
Interior.
[FR Doc. 2020-19577 Filed 9-4-20; 8:45 am]
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