Appendix — National Ass'n v. Defenders of Wildlife

S 5.

No. 06-340 SEP 6 - 2006

Jn The OF FICE OF THE CLERK

Supreme Court of the Gnited States

NATIONAL ASSOCIATION OF HOME BUILDERS, et al.,

Petitioners,

VS.

DEFENDERS OF WILDLIFE, et ai.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

°

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

VOLUME II, PAGES 318 TO 623

e

RUSSELL S. FRYE NORMAN D. JAMES

FRYE LAW PLLC (Counsel of Record)

3050 K Street NW, FENNEMORE CRAIG, P.C.

Suite 400 3003 North Central Avenue,

Washington, DC 20007-5108 Suite 2600

(202) 342-8878 Phoenix, AZ 85012-2913

(602) 916-5346

DUANE J. DESIDERIO

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, NW

Washington, DC 20005-2800

(202) 266-8200

—4

COCKLE LAW BRIEF PRINTING CO (800) 225 6964

OR CALL COLLECT (402) 342-2831

APPENDIX

TABLE OF CONTENTS

App.

VOLUME I

OPINION SOUGHT TO BE REVIEWED

Defenders of Wildlife v. U.S. Environmental Protection

Agency, 420 F.3d 946 (9th Cir. August 22, 2005)........ 1-68

ORDER ON REHEARING

Defenders of Wildlife v. U.S. Environmental Protection

Agency, 450 F.3d 394 (9th Cir. June 8, 2006)...... 134-158

AGENCY DECISIONS REVIEWED ON APPEAL

Approval of Application by Arizona to Administer

the National Pollutant Discharge Elimination

System (NPDES) Program; Arizona, 67 Fed. Reg.

79,629 (December 30, 2002) 20.0.0... ccceesseeeteteeeeeeeeees 69-76

United States Department of the Interior, U.S. Fish

and Wildlife Service, Arizona Ecological Services

Field Office Biological Opinion (December 3,

ITT ical capes hiletiedenisiinahnieitasiianiinadielbianetbe 77-124

Order, United States District Court, District of

I Et Bn CD eeetecceinistnccnincctsninctinmnnniin 125-133

STATUTES

I IN TIT seis us dciesietdinpiensiansitnnsaanstiabiniods 182-183

A SIT cnidictsicctesinnstnioaninniiseipeantiniouniiedaien 184-202

Ey II IT oo neichinrsinatinioninembenddnisdgtnn 159-162

a I I nin sndninieipcentintenniaiddiiciiniiel 162

SS mien 163-181

il

APPENDIX

TABLE OF CONTENTS - Continued

App.

REGULATIONS 7

a Bi ciiitcrnsenisnccccnsesenssnsntntitinenniines 203-206

4B S}.BR. Bartha BBDBL........cccceceecscsccsscsscscsscesesscseses 206-207

Ce, Bie Fi cicnccntntccsticnesnenicnsssiocsensnnias 207-210

Pek s BO 8 eee 210

Pood s Bf eee 211-215

GD O.TE,. Beatles BBBAG. ...ccccccncresseccsscesscssescosssccocsees 215-221

GO GPT. Bartlet BIB .cccccccccsccsesscccccerssscescnsonccsscees 221-223

50 C.ER. Section 402.01........s:sssssssiesssssssseeeeceeeesee 223-225

GO O.PR, Bertie GOBGB..ncccvercevesccersesesesesscssscssseseees 225-229

GO C.BR. Boatiow SGB.GB.....00cccsccessesessccrscossccsccssssesosssesveses 230

BO C.WR,. Boctiows $08. 2B.....0.ccccccesescescsescsscessscscsesseees 230-235

50 C.FR. Section 402.14........ccscsssssssssscssssessssssnneeeen 235-243

BO C.WR. Bastiat SGB.IG....0.covcescscscoscecccssessccscvsssscosces 243-244

FEDERAL REGISTER

Memorandim of Agreement Between the Environ-

mental Protection Agency, Fish and Wildlife Service

and National Marine Fisheries Service Regarding

Enhanced Coordination Under the Clean Water Act

and Endangered Species Act; Notice, 66 Fed. Reg.

11,202 (February 22, 2001) ........:::cccccseseeceeseeeenenees 245-317

ill

APPENDIX

TABLE OF CONTENTS - Continued

App.

. VOLUME II

Interagency Cooperation - Endangered Species Act_

of 1973, as Amended; Final Rule, 51 Fed. Reg.

NY I HII sustincescccdosipcslniousendatinnceictiaiionsneiniien 318-480

Application to Administer the National Pollutant

Discharge Elimination System (NPDES) Pro-

gram; Arizona, 67 Fed. Reg. 49,916 (August 1,

II aout scecsibtatiatlaielscelcidiniadieisiiinindinhidaiaasiondiantiieunmeens 543-561

LEGISLATIVE HISTORY

Endangered Species Act of 1973, Pub. L. No. 93-205,

NE Ts ichiishiiniiiinicctsaciponeicanencsiiinnndonneiniie 481-483

H.R. Conf. Rep. No. 95-1804 (1978) ..........cceeeeseees 484-487

H.R. Rep. No. 95-1625 (1978)..............cccsssessssecesseess 488-497

Be Si es ee CD rctitisttenctevercusscasscosnssenscccins 498-507

H.R. Conf. Rep. No. 96-697 (1979) ..........:cccceseeeeees 508-517

BEER, Baw. Bee. OF-BG7 (1GGE)..ccccecnssesocecscessccsssesessioses 518-528

S. Rep. No. 97-418 (1982)............... sdahadasiadiiaaibaechissiaiiien 529-542

MISCELLANEOUS PORTIONS OF RECORD

Biological Evaluation for Endangered Species Act

Consultation on USEPA’s Proposed Approval

of the State of Arizona’s NPDES Program and

Transmittal Letter (June 21, 2002)................0..... 583-623

U.S. EPA and U.S. Fish and Wildlife Service/DOI

Interagency Elevation Document (October 4,

EEE SER el ee ee er 562-582

App. 318

FEDERAL REGISTER

51 Fed. Reg. 19,926 (June 3, 1986)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

Interagency Cooperation - Endangered Species Act

of 1973, as Amended; Final Rule

AGENCIES: Fish and Wildlife Service, Interior; National

Marine Fisheries Service, National Oceanic and Atmos-

pheric Administration, Commerce.

ACTION: Final rule. -

SUMMARY: This final rulemaking establishes the

procedural regulations governing interagency cooperation

under section 7 of the Endangered Species Act of 1973, as

amended (the “Act”). The Act requires Federal agencies, in

consultation with and with the assistance of the Secretar-

ies 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 the critical habitat

of such species. The Endangered Species Act Amendments

of 1978, 1979, and 1982 (the “Amendments”) changed the

consultation requirements of section 7. This final rulemak-

ing amends the existing rules governing section 7 consul-

tation by implementing the changes required by the

App. 319

Amendments and by incorporating other procedural

changes designed to improve interagency cooperation.

EFFECTIVE DATE: July 3, 1986.

FOR FURTHER INFORMATION CONTACT: Marvin

E. Moriarty, Acting Chief, Office of Endangered Species,

U.S. Fish and Wildlife Service, Department of the Interior,

Washington, D.C. 20240 (703-235-2771); or Charles

Karnella, Protected Species Division, Office of Protected

Species and Habitat Conservation, National Marine

Fisheries Service, National Oceanic and Atmospheric

Administration, Department of Commerce, Washington,

D.C. 20235 (202-634-7461).

SUPPLEMENTARY INFORMATION:

Background

On January 4, 1978, the Department of the Interior,

through the United States Fish and Wildlife Service

(FWS), and the Department of Commerce, through the

National Marine Fisheries Service (NMFS), established

procedures for the Act’s consultation process by imple-

menting the interagency cooperation requirements of

section 7 (50 CFR Part 402, “1978 rule”). The consultation

process is designed to assist Federal agencies in complying

with the requirements of section 7 and provides such

agencies with advice and guidance from the Secretary on

whether an action complies with the substantive require-

ments of section 7.

The Secretaries of the Interior and Commerce (the

“Secretary”) share responsibilities for conducting consulta-

tions pursuant to section 7 of the Act. Generally, marine

species are under the jurisdiction of the Secretary of

App. 320

Commerce and all other species are under the jurisdiction

of the Secretary of the Interior. Authority to conduct

consultations has been delegated by the Secretary of the

Interior to the Director of the FWS and by the Secretary of

Commerce to the Assistant Administrator for Fisheries,

NMFS, National Oceanic and Atmospheric Administra-

tion.

Section 7(a)(1) of the Act authorizes Federal agencies,

in consultation with and with the assistance of the Secre-

tary of the Interior or Commerce, depending on the species

involved, to utilize their resources in furtherance of the

purposes of the Act by carrying out programs for the

conservation of endangered species and threatened species

(“listed species”) listed pursuant to section 4 of the Act.

Section 7(a)(2) of the Act requires Federal agencies, in

consultation with and with the assistance of the Secretary,

to insure that any action authorized, funded, or carried out

by such agency is not likely to jeopardize the continued

existence of any listed species or result in the destruction

or adverse modification of habitat of such species which

has been designated as critical (“critical habitat”). Al-

though Federal agency authority and responsibility under

section 7 have remained virtually intact from the 1973 Act,

the Amendments made significant procedural changes in

the section 7 consultation procedures.

The 1978 Amendments formalized the process for the

issuance of the Secretary's opinion (“biological opinions”),

and required that the opinion include “reasonable and

prudent alternatives” in cases where the proposed Federal

action, in the opinion of the Secretary, would jeopardize

the continued existence of a listed species or result in the

destruction or adverse modification of its critical habitat.

App. 321

The 1978 Amendments also added section 7(c), requiring

the preparation of biological assessments in appropriate

instances. [Section 7(d) of the Act, also added by the 1978

Amendments, prohibits a Federal agency or any involved

permit or license applicant, after initiation of consultation,

from making an irreversible or irretrievable commitment

of resources which would foreclose the adoption of any

reasonable and prudent alternatives.

Perhaps the most significant part of the 1978 Amend-

ments was the creation of the Endangered Species Com-

mittee, which is authorized to grant exemptions from the

requirements of section 7(a)(2) in appropriate cases.

Regulations governing the submission of exemption

applications and consideration of such applications by the

Endangered Species Committee are presently codified at

50 CFR Parts 450-453. Although this final rule on consul-

tation procedures does not deal directly with exemptions,

good faith adherence to the consultation requirements of

section 7 is a statutory prerequisite for entry into the

exemption process.

The 1979 Amendments slightly altered the Federal

agency’s substantive obligation under section 7(a)(2) from

insuring that its action “does not jeopardize” listed species

or adversely modify the critical habitat of such species to

insuring that its action “is not likely to jeopardize” such

species or critical habitat. Congress expressly provided

that the consultation and resultant biological opinion be

based upon the “best scientific and commercial data

available.” These changes made the consultation process

more flexible and established a reasonable information

standard to be followed by the NMFS and FWS (the

“Service”) and other Federal agencies. The 1979 Amend-

ments added a requirement that all Federal agencies

App. 322

confer with the Secretary on all actions that are likely to

jeopardize the cor:tinued existence of proposed species or

result in the destruction or adverse modification of pro-

posed critical habitat.

The 1982 Amendments also established several new

processes under section 7. First, a new subsection 7(b)(4)

allows for the issuance of an “incidental take statement”

along with a biological opinion. This “incidental take

statement” operates to exempt the Federal agency and any

permit or license applicant involved from the section 9

“taking” prohibitions under the Act if the subsequent

implementation of the action is consistent with the terms

and conditions of the incidental take statement.

Second, the 1982 Amendments provide an opportunity

for permit or license applicant involvement in ail phases of

the consultation procedures. A prospective permit or

license applicant may request Federal agencies to initiate

consultation in advance of filing for any needed license or

permit, if they have reason to believe that their proposed

actions may affect listed species or critical habitat. This

new provision, under section 7(a)(3), for “early consulta-

tion” allows a prospective applicant the opportunity to

discover, and attempt to resolve, potential endangered or

threatened species conflicts early in the planning stage of

the proposed action — a time at which alterations in project

plans could involve much less expense and delay.

Further involvement of the applicant in the consulta-

tion procedures is provided by the requirement that the

applicant be involved in time extensions. Congress

amended section 7(c) to require the Federal agency to give

written notice to the applicant explaining why any exten-

sion of the biological assessment deadline is needed. If

App. 323

formal consultation under section 7(a)(2) is extended by

the Service and the Federal agency for up to 60 days, the

Service must provide the applicant with a written expla-

nation of the reasons for extension. Any extension past 60

days must be approved by the applicant. Clearly, the

permit or license applicant plays an active role in the

consultation process. The final rule recognizes this in-

creased role of the applicant while retaining the require-

ment that formal communications flow between the

Federal agency and the Service during the consultation

process.

In order to implement these Amendments to section 7

and to otherwise improve the interagency cooperation

process, the Service published a proposed rule on June 29,

1983 (48 FR 29990-30004). Although the Service originally

specified a 60-day comment period for these revised

section 7 regulations, the comment period was extended

until September 30, 1983. The Service received approxi-

mately 70 comments from other Federal agencies, State

governmental agencies, private organizations, and other

individuals and entities on the proposed rule.

After careful consideration of these comments, the

Service has modified the regulations to clarify the consul-

tation process and to improve the overall organization of

the regulations. These technical changes are more fully

explained in the section-by-section analysis below and

were made to accommodate concerns raised in the public

comments.

General Comments

The majority of the comments received on the pro-

posed rule focused on particular regulatory provisions or

App. 324

concepts. These specific comments are discussed in the

section-by-section analysis. However, several commenters

expressed general concerns with the proposed rule or

addressed matters that went beyond the scope of the

proposal.

These general comments ranged from praise for the

comprehensiveness of the proposal to criticism for the

proposal’s alleged failure to require the level of analysis

and protection mandated by the Act. The Service believes

that this final rule properly and accurately implements

the Amendments to the Act and affords the protection

mandated by section 7.

The House of Representatives Committee on Mer-

chant Marine and Fisheries (“House Committee”), which

oversees the implementation of the Act, submitted com-

ments on the proposed rule. The Committee commended

the Service in its efforts to translate complex legislation

into agency policy and noted specific areas that it nelieved

did not conform to the legislative intent. These matters

have been clarified in the final rule.

One commenter was concerned that the proposed rule

confused the informal (nonmandatory) consultation

components with the formal (required) components of the

consultation process. To clarify this matter, the Service has

distinguished optional procedures from required proce-

dures in the final rule. For example, the conference proce-

dures (§ 402.10) are required for Federal actions that are

likely to jeopardize proposed species or proposed critical

habitat and the formal consultation procedures (§ 402.14)

are required for actions that may affect listed species or

critical habitat. Additionally, biological assessments

(§ 402.12) are required for “major construction activities.”

App. 325

Early « nsultation (§ 402.11) and informal consultation

(§ 402.13) are optional procedures and are clearly desig-

nated as such in the final rule.

Concerned about increased paperwork burdens and

potential time commitments resulting from the proposal,

one commenter complained that the proposed rule is

burdensome, unnecessary, and unacceptable. The com-

menter noted that additional protection for listed species

or their habitat would not result from these alleged

increases in administrative burdens, and it urged that

currently used processes be maintained. The Service

emphasizes that the proposal was not intended to increase

in any way the paperwork burden of Federal agencies or

any other participant in the consultation process. More-

over, the purpose of the proposal was to implement the

Amendments to the Act in such a way as to streamline the

consultation process while maintaining the protections

afforded species under section 7. The concern of the

commenter has been addressed to the extent possible by

the Service’s effort to clarify the consultation process in

this final rule. Because section 7 imposes certain require-

ments on Federal agencies, any burdens recognized in this

final rule are a creature of statutory law as implemented

by these regulations.

Two commenters asserted that the Act protects habi-

tat only when it is designated as the critical habitat of a

listed species and, therefore, the Service must identify

areas of critical habitat for all listed species to assure

adequate protection. It is true that the Service has not

designated critical habitat for all listed species. The

Service has consistently taken the position that it is not

prudent to designate critical habitat for a species if to do

so would increase the risk that the species might be taken

App. 326

or would otherwise not benefit the species. See 50 CFR

424.12(a). However, the commenters ignore the fact that

section 7 protections attach to both designated éritical

habitat and to each individual of a listed species within

the jurisdiction of the United States or on the high seas.

An action could jeopardize the continued existence of a

listed species through the destruction or adverse modifica-

tion of its habitat, regardless of whether that habitat has

been designated as “critical habitat.” Thus, the failure of

the Service to designate critical habitat for a given species

does not automatically mean that its habitat is without

protection.

Two States commented that Federal agencies charged

with implementing the Act should recognize and cooperate

with the States in resolving water resource issues within

the context of section 7. Consistent with the Department’s

“good neighbor” policy, one commenter encouraged the

Service to actively include affected States in any consulta-

tion process. The Service intends to cooperate with all

State and local agencies to resolve water resource issues

consistent with the requirements of the Act. The Service

stands ready to receive any and all comments, data, or

other input from any affected States that are interested in

a particular section 7 consultation. However, consultation

takes place between the Service, the Federal agency and,

where applicable, a Federal permit or license applicant.

Several commenters stated that the proposal goes

beyond the scope of the Act, thereby placing unjustifiable

burdens on applicants and Federal agencies. They claimed

that the rules would usurp Federal agency authority. One

commenter questioned the ultimate authority of the

Service to issue binding procedural regulations under

section 7. In no way does the Service intend to use the

App. 327

consultation procedures of section 7 to establish substan-

tive policy for Federal agencies. The Service performs

strictly an advisory function-under section 7 by consulting

with other Federal agencies to identify and help resolve

conflicts between listed species and their critical habitat

and proposed actions. As part of its role, the Service issues

biological opinions to assist the Federal agencies in con-

forming their proposed actions to the requirements of

section 7. However, the Federal agency makes the ulti-

mate decision as to whether its proposed action will satisfy

the requirements of section 7(a)(2). The Service recognizes

that the Federal agency has the primary responsibility for

implementing section 7’s substantive command, and. the

final rule does not usurp that function. The Service is

satisfied that the final rule is within the scope of the

authority provided in the Act.

Moreover, the Service is responsible for interpreting

section 7 and for establishing a consultation process that

is both uniform and consistent with statutory require-

ments. This issue was addressed in the preamble to the

1978 rule:

The FWS and NMFS are authorized under the Act to issue

such regulations as they deem appropriate for the conservation

of listed species. The two Services believe that these procedural

regulations promote the conservation of listed species by imple-

menting a uniform general framework as the starting point for

consultation. Once the mandatory consultation has taken place,

however, the ultimate responsibility for determining agency

action in light of section 7 still rests with the particular Federal

agency that was engaged in consultation. In this fashion, a

standardized consultation process is established which preserves

App. 328

ultimate agency administrative control over its activities or

programs.

43 FR 870, 871 (Jan. 4, 1978). These procedural regula-

tions do not dictate results but prescribe a process by

which the Service will consult in keeping with the Act.

Several commenters stated that Congress did not

intend that the Service interpret or implement section 7,

and believed that the Service should recast the regulations

as “nonbinding guidelines” that would govern only the

Service’s role in consultation. The Service notes that

Congress reviewed with approval the section 7 regulations

issued on January 4, 1978, when deliberating over the

1978 Amendments to the Act. See H.R. Conf. Rep. No.

1804, 95th Cong., 2d Sess. 18 (1978). Also, the Service was

urged by the House Committee, through its comments on

the proposed rule, to press forward with the issuance of

this final rule. The Service is satisfied that it has ample

authority and legislative mandate to issue this rule, and

believes that uniform consultation standards and proce-

dures are necessary to meet its obligations under section

7. However, the Service is aware that some Federal pro-

grams may require a modified consultation process, and

therefore the Service has provided for the issuance of

counterpart regulations under § 402.04.

Several general comments were received regarding

programmatic adjustments and coordination. One com-

menter suggested that the Service maintain cumulative

summaries of consultation activities in the Washington

Office. The Service maintains copies of all biological

opinions and monitors the issuance of biological opinions

in an effort to ensure consistency and accuracy of findings.

The Service submits that current review mechanisms are

App. 329

adequate and that, although the maintenance of cumula-

tive consultation summaries might be useful, the in-

creased costs are not justified.

Another commenter urged increased public participa-

tion in the consultation process, including: (1) Public

notice of each request for consultation; (2) public notice of

the agenda for each consultation; (3) public notice of

consultation results; (4) public comment periods; and, (5)

prescribed rights to appeal by the public. Nothing in

section 7 authorizes or requires the Service to provide for

public involvement (other than that of the applicant) in

the “interagency” consultation process. Moreover, due to

the statutory time constraints imposed on the consultation

procedures, it would not be practicable to implement such

detailed public participation measures. Public participa-

tion may be provided within the Federal agency’s deci-

sionmaking process. However, that is a function of the

agency’s regulations or substantive legislation and not an

issue to be raised in the context of consultation.

Finally, several questions were raised as to what rules

will apply to pending consultations once the final rule

becomes effective. The Service does not anticipate any

dramatic change in procedure or additional burdens on

Federal agencies because the statutory changes to section

7 have been in effect throughout the development of the

final rule. When this rule becomes effective, all pending

and future consultations must comply with the require-

ments of these regulations. The Service will cooperate with

the Federal agencies and any applicants to ensure that

there are no undue delays in ongoing consultations.

App. 330

Section-by-Section Analysis

The following portion of the preamble explains the

final rule, covering the substantive issues of each section,

noteworthy modifications from the proposed rule, signifi-

cant changes from the 1978 rule, and responses to public

comments. To assist the reader, Table 1 presents a citation

to each subsection of the proposed rule with appropriate

cross-references to the location of that provision in the

final rule and in the 1978 rule.

TABLE 1. - CroSS-REPERENCE OF SECTION 7 REGULATORY PROVISIONS: PROPOSAL — Final — 1978 RULE

Proposal Final 1978 Rule

CC ETE ae §402.01

CC CC $402.02 Definitions

" mieaeeie Ee (none)

- “Action” spun CC ~ “Actuviuies or programs”

yee “Action area”... cima (none)

i ichisnetligaibeednnsncien Rinna | | OD

So: :

al

=

>

—

>

ma

ip

ig

Ls

os

- ‘ff _ S

7 oe yal teen b ~

ra |

eee seen $402. 13%a), 402.14(b) |$402.04a)

--—{d). TS | (a), (c), (d)

e) -e) -e), (f)

<f) — ———e)

4g) —h)...... —-"

4h) 4h}{)) 4e)

—ik1) re 7 (none)

——AiN2H4) 14(f), 402.15). (none)

jl) 4f). ow

——~+4j(2) ee (none)

-——k) —a) $402.04(a)

$402.16 (none) (none)

§402.17(a)......... 1a) §402.04(g)

4b) 18e). (none)

a Siemptasthetnei " 06(b) $402.04(g)

$402.18 16.

§402.19 +=SeEeeeee Pan (none)

zee ddy

2 ~ 7 .

*

ane 2

i

; 2s"

or Fe

pts Seyret *

App. 333

Subpart A - General

Section 402.01 Scope.

This section describes the purpose and scope of these

regulations. Section 402.01 of the proposed rule contained

an introductory paragraph and five subsections that were

largely repetitive of other sections of the rule. These

repetitive passages have been deleted from the final rule,

and minor editorial corrections have been made.

Several commenters noted that, although § 402.01

acknowledges the language of section 7(a)(1) of the Act, no

guidance is provided to enable Federal agencies to meet

their conservation responsibilities under the Act. Claiming

that the rules are silent as to Federal agency management

programs required for the recovery of listed species, one

commenter advised the Service to add a statement in the

rule that would insure that Federal agencies address

recovery as well as detrimental effects through consulta-

tion. According to another commenter, this statement may

include a request that Federal agencies issue policies and

procedures to implement their authority under section

7(a)(1).

The Service notes that it is beyond the scope of these

regulations to address how other Federal agencies should

implement and exercise their authority to carry out

conservation programs for listed species under section

7(a)(1). However, the Service stands ready to assist any

Federal agency in developing and carrying out conserva-

tion programs. The Service cautions that all Federal

actions including “conservation programs” are subject to

the consultation requirements of section 7(a)(2) if they

“may affect” listed species or their critical habitats. If the

Service agrees, through informal consultation, that the

BEST AVAILABLE COPY

App. 334

action is not likely to adversely affect the species, then

formal consultation is not required [see § 402.13(a)-(b)].

Each Federal agency has the responsibility to implement

its authority under section 7(a)(1). Further, any conserva-

tion program must comply with applicable permit re-

quirements to the extent that such actions involve the

taking of listed species. “Take,” as defined in the Act,

means to harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or to attempt to engage in any

such conduct.

The 1978 rule extended the scope of section 7 beyond

the territorial limits of the United States to the high seas

and foreign countries. The proposed rule cut back the

scope of section 7 to the United States, its territorial sea,

and the outer continental shelf, because of the apparent

domestic orientation of the consultation and exemption

processes resulting from the Amendments, and because of

the potential for interference with the sovereignty of

foreign nations. Several commenters asserted that the

rules should continue to have extraterritorial effect. The

scope of these regulations has been enlarged to cover

Federal actions on the high seas but has not been ex-

panded to include foreign countries. The Service finds

that, because it already has jurisdiction under section

9(a)(1)(C) of the Act to regulate the taking of a listed fish

or wildlife species on the high seas by all persons subject

to the jurisdiction of the United States, concomitant

jurisdiction under section 7 is implicit from Congressional

concern that compliance with a section 7 incidental take

statement not result in a taking violation under section

9(a)(1)(C), as provided-in section 7(0)(2).

Although consultations on Federal actions in foreign

countries will not be conducted under this rule, the Service

App. 335

maintains its strong commitment to the preservation of

species and habitat worldwide. The Service will continue

to list species which are found outside of United States

jurisdiction when they are determined to be endangered or

threatened.

Furthermore, Congress, in the International Envi-

ronment Protection Act of 1983, 22 U.S.C. 215lq, made a

finding that “the extinction of anime] and plant species is

an irreparable loss with potentially serious environmental

and economic consequences for developing and developed

countries alike.” Accordingly, it places the preservation of

species “through limitations on the pollution of natural

ecosystems, and through the protection of wildlife habi-

tats” as an “important objective of the United States

development assistance.” In furtherance of this policy, an

Interagency Task Force was established to develop a

national strategy for the protection and conservation of

biological diversity in developing countries. The task force

did not specifically recommend that international assis-

tance activities be subject to consultation requirements,

but did cite section 7(a)(2) in recommending that Federal

agencies “should continue to adopt policies withholding

support for certain types of projects that degrade or

destroy fragile or protected lands.” Until enacted by

Congress, however, the recommendations of the task force

will not be implemented in these regulations for the

reasons stated above.

One commenter urged the Service to change the

standard for initiating a section 7(a)(4) conference from

“likely to jeopardize” to “would adversely affect.” The

regulation tracks the statute, and the Service lacks the

authority to make the requested change. The same com-

menter noted that the section 7(d) sentence referred to a

App. 336

“would avoid jeopardizing” standard. (Emphasis theirs.)

Again, the Service adopts the regulation as in keeping

with the statutory standard.

Another commenter stated that biological opinions

need only be required after formal consultation under

section 7(a)(2) of the Act and that this should be clarified

in the rule. The Service disagrees because the statute

requires that a “written statement” containing the Secre-

tary’s opinion be issued after the conclusion of both early

and formal consultation. The rule has been amended

slightly to clarify this requirement.

The commenter also requested that the sentence in

proposed § 402.01(d) dealing with section 7(d) be amended

by adding “measures” after the phrase “reasonable and

prudent alternative(s]” to bring the regulation in line with

the statute. The Service declines to make this change

because it would tend to confuse “reasonable and prudent

alternatives” that are included in jeopardy biological

opinions with “reasonable and prudent measures” that are

included in an incidental take statement under section

7(b)(4) of the Act. The proposed language describing the

section 7(d) prohibition accurately implements the Act and

is adopted in this final rule.

Section 402.02 Definitions.

This section sets out definitions of terms that are used

throughout these regulations. As noted in Table 1, many

definitions have been added to those included in the 1978

rule. Only comments which specifically addressed the

definitions used in these regulations are discussed in this

section. These terms are further discussed as they pertain

App. 337

to the consultation procedures in the appropriate, subse-

quent sections.

A definition of “Act” has been added to the final rule.

It refers to the Endangered Species Act of 1973, as

amended (16 U.S.C. 1531 et seq.).

The definition of “action” parallels the former defini-

tion of “activities or programs,” a term that predated the

Amendments. Several changes have been made in the

definition of “action” to accommodate public comments:

First, the definition is expanded to cover activities occur-

ring on the high seas. (See § 402.01 segment of the Pream-

ble.) Second, the phrase “actions that are intended to

conserve listed species or their habitat” was restored from

the 1978 rule because of the decision to require Service

review of all Federal actions that may affect listed species

or their critical habitat. (See § 402.14 segment of the

Preamble.) The Service declines to define further or to

delete the reference to actions that “indirectly cause

modifications to the land, water, or air” in this definition.

The concept of indirect effects is adequately addressed in

the discussion of “cumulative effects” and “effects of the

action.”

The definition of “action area” is adopted from the

proposed rule. Several commenters criticized the vague-

ness or apparent expansiveness caused by the reference to

indirect effects in this definition. The definitions of “cumu-

lative effects” and “effects of the action” further clarify the

scope of “indirect effects.”

The Service is not able to define specific spatial and

temporal limits for the concept of indirect effects that

would satisfy every conceivable situation, and believes

that sufficient understanding of the term exists so that

App. 338

confusion will not occur. “Action area” is not limited te the

immediate area involved in a Federal action.

“Applicant,” an abbreviated term including all permit

or license applicants, was defined in the proposed rule

because of the increased role of permit or license appli-

cants in the consultation process. Although the Act defines

“permit or license applicant” in section 3(12), the Act’s

definition is of limited use in the consultation context

because it focuses on the exemption process under section

7. The definition in the proposed rule broadly defines

“applicant” as “any person who requires formal approval

or authorization from a Federal agency as a prerequisite to

conduct the action.” Thus, applicants would include those

seeking permits, licenses, leases, letters of authorization,

and any other form of authorization or approval issued by

a Federal agency as a prerequisite for carrying out the

action.

One commenter suggested that the definition of

applicant be amended to allow prospective permit appli-

cants to participate in section 7 consultations involving

the promulgation of regulations governing permit issu-

ance. The applicant (or prospective applicant) is involved

in the consultation process as a result of a specific permit

or license application. The applicant may provide input

regarding its concerns in the Federal agency’s rulemaking

process through the Administrative Procedure Act, 5

U.S.C. 551 et seq. Further, a prospective applicant could

request early consultation through the Federal agency

under § 402.11 of this rule on its prospective application

during the course of agency rulemaking, if it desires early

notice of potential conflicts and if it meets the require-

ments of these regulations. This would involve interaction

with the Service, but it would be limited in scope to the

App. 339

prospective application for the permit at issue, not a

general consultation on the pending rulemaking. In

response to another comment, the Service takes the

position that it will not expand “applicant” to include those

seeking funding from Federal agencies, unless the request

for funding is coupled with a requirement that the person

obtain Federal approval or authorization as a prerequisite

for carrying out the action for which funding is sought.

Finally, one commenter asked that the scope of the defini-

tion be expanded to include corporations, Federal agen-

cies, and all other legal entities. The Service believes that

the use of the word “person” in the definition satisfies the

commenter’s concern because of the broad definition of

that term in section 3(13) of the Act. To clarify this point,

the Service added a reference to the Act’s definition of

“person” in the definition of “applicant” in the final rule.

| The definition of “biological assessment” in the final

rule, derived from §§ 402.02 and 402.12(b)(4)(ii) of the

proposed rule, clarifies that the assessment must include

an evaluation of potential impacts. One commenter criti-

cized the “vagueness” of the definition of “biological as-

sessment” in the proposed rule, stating that it was unclear

as to how a Federal agency would determine which species

or critical habitat may be in the action area and how the

agency would evaluate potential effects. The Service

believes that this definition is adequate and that the

process-oriented format in § 402.12 of the regulations

adequately explains the scope and procedure of the bio-

logical assessment requirement.

The proposed definition of “biological opinion” has

been adopted in these final rules. A biological opinion is

the document that states the Service’s opinion as to

whether or not the Federal action is likely to jeopardize

App. 340

the continued existence of listed species or result in the

destruction or adverse modification of critical habitat. One

commenter suggested a third possible conclusion for

biological opinions: “insufficient information to issue an

opinion.” The commenter argued that such a conclusion

would eliminate the risk that the Service takes when

issuing an opinion based on arguably inadequate data.

The Service declines to add this third option. The legisla-

tive history of the Act is clear in requiring the Service to

make a decision on the issue of likely jeopardy at the

conclusion of formal consultation. The Service will not

sidestep this obligation, but instead will conclude either

“jeopardy” or “no jeopardy” based on the best available

data.

The definition of “conference” has been adopted as

proposed. One commenter suggested that the conference

not include recommendations to minimize or avoid adverse

effects since they are not required by section 7(a)(4) of the

Act. The commenter believed that such recommendations

might result in legal action if not adopted. The Service,

however, believes it has the responsibility not only to

identify impacts but also to identify measures that would

reduce those impacts.

The definition of “conservation” contained in the

proposed rule was derived from the Act’s definition in

section 3(3). One commenter, characterizing the Service’s

interpretation of “conservation” as opposing the purposes

of the Act and potentially encouraging the “further de-

cline” of listed species, urged the Service to adopt the strict

language of the statutory definition. The Service’s defini-

tion in the proposed rule in no way discouraged recovery.

In fact, the proposed definition tracked the statute except

for its interpretation of “the point at which the measures

App. 341

provided pursuant to this Act are no longer necessary” as

being equivalent to “the point at which [the species] may

be removed from the Lists. . . .” The basic goal of the Act is

to recover listed species through conservation measures.

Bringing a species to the point at which the Act’s protec-

tive measures are no longer necessary is the same as

bringing the species to the point at which delisting is

appropriate. However, to avoid any misunderstanding, the

Service has deleted the definition from the final rule and

will rely solely on the definition contained in section 3(3) of

the Act. The Service declines specifically to include habitat

modification (improvement or restoration), “off-site mitiga-

tion,” captive propagation, and species reintroduction in

the list of conservation methods and procedures, as sug-

gested by certain commenters. Such activities are already

adequately provided for in the Act’s definition.

The term “conservation recommendations” was

introduced in the proposed rule and explains the Service's

role in helping agencies meet their section 7(a)(1) respon-

sibilities. Several commenters feared that the Service

would employ conservation recommendations to require

Federal agencies to reformulate their actions that had

received “no jeopardy” biological opinions. This is not the

purpose of conservation recommendations. They are

nonbinding suggestions that a Federal agency may elect to

implement in its proposed action. These recommendations

should be consistent with the general scope, magnitude,

and duration of a Federal action that is not likely to

jeopardize a listed species or destroy or adversely modify

its critical habitat. The Service, in answering the concerns

noted above, is satisfied that it has clarified its position

and that the regulatory definition should not be deleted.

The Service has chosen to retain this definition with

App. 342

limited, technical changes because it believes that the

opportunity to provide conservation recommendations,

including minor design modifications, may minimize

possible adverse effects and may avoid future section 7

conflicts for subsequent Federal actions in the same action

area.

One commenter confused “conservation recommenda-

tions” with “reasonable and prudent alternatives” and

believed that recommendations to reduce adverse impacts

would violate section 7(a)(2), absent the granting of an

exemption. The obligation of Federal agencies under

section 7(a)(2) is to insure that the actions they authorize,

fund, or carry out are not likely to jeopardize listed species

or destroy or adversely modify their critical habitat. A

showing of “adverse effect” does not necessarily violate

section 7(a)(2), because the jeopardy standard is the

ultimate barrier through which Federal agencies may not

pass in conducting their actions. “Reasonable and prudent

alternatives” represent avenues of fulfilling the action

without violating the jeopardy standard. “Conservation

recommendations” involve voluntary measures that the

Federal agency has the discretion to undertake to avoid or

reduce adverse effects of a proposed action that otherwise

complies with the provisions of section 7(a)(2).

The definition of “consultation process” has been

deleted from the final rule because it tended to confuse the

statutory requirements and optional processes and be-

cause it added little to the public’s understanding of the

process. The definition in the proposed rule could have led

persons to believe that early consultation and informal

consultation are required, sequential steps of the overall

consultation process. As discussed above, the only required

components of the consultation process are a “conference”

App. 343

for proposed species, a “formal consultation” for listed

species, and a biological assessment for “major construc-

tion activities.”

The “critical habitat” definition contained in the

proposed rule only referred to those sections of 50 CFR

Parts 17 and 226 that contain the lists of those areas so

designated. The mechanics of the designation process are

more properly considered under the section 4 regulations

(50 CFR Part 424). For purposes of determining whether

any of their actions is likely to destroy or adversely modify

critical habitat, Federal agencies involved in section 7

consultations need only be aware of those areas that have

been designated by the Service as critical habitat. Two

commenters requested that a definition of critical habitat

be included in the final rule. The Service notes that the

requested definition is contained in the Act and need not

be repeated here.

“Cumulative effects” and “effects of the action” are

defined in §402.02 of the final regulations. Under

§ 402.14(g) (3) and (4) of the final rule, the Service will

consider both the “effects of the action” subject to consulta-

tion and “cumulative effects” of other activities in deter-

mining whether the action is likely to jeopardize the

continued existence of a listed species or result in the

destruction or adverse modification of critical habitat.

In determining the “effects of the action,” the Director

first will evaluate the status of the species or critical

habitat at issue. This will involve consideration of the

present environment in which the species or critical

habitat exists, as well as the environment that will exist

when the action is completed, in terms of the totality

of factors affecting the species or critical habitat. The

App. 344

evaluation will serve as the baseline for determining the

effects of the action on the species or critica] habitat. The

specific factors that form the environmental baseline are

given in the definition of “effects of the action,” as re-

quested by some commenters.

“Effects of the action” include the direct and indirect

effects of the action that is subject to consultation.

“Indirect effects” are those that are caused by the

action and are later in time but are still reasonably certain

to occur. They include the effects on listed species or

critical habitat of future activities that are induced by the

action subject to consultation and that occur after that

action is completed. In National Wildlife Federation v.

Coleman, 529 F.2d 359 (5th Cir. 1976), the Court of Ap-

peals for the Fifth Circuit found that “indirect effects”

which can be expected to result must be considered under

section 7 of the Act. In that case, the court enjoined com-

pletion of a highway because the Department of Transpor-

tation failed to consider the effects to the endangered

sandhill crane from future private development that would

result from construction of the highway. The Service will

consider the effects to listed species from such future

activities that are reasonably certain to occur under the

analysis of “indirect effects.” The Service’s approach will

be consistent with National Wildlife Federation v. Cole-

man, and the Service declines to narrow the scope of its

review (as requested by one commenter) in light of existing

case law.

Effects of the action also include direct and indirect

effects of actions that are interrelated or interdependent

with the proposal under consideration. Interrelated

actions are those that are. part of a larger action and

App. 345

depend on the larger action for their justification; interde-

pendent actions are those that have no significant inde-

pendent utility apart from the action that is under

consideration. As noted by one commenter, the “but for”

test should be used to assess whether an activity is inter-

related with or interdependent to the proposed action.

One commenter urged the Service to exclude Federal

actions that have completed consultation from the envi-

ronmental! baseline unless it can be shown that the actions

are reasonably certain to occur. The Service declines to

adopt this suggestion. In issuing its biological opinion on

an action, the Service’s finding under section 7(a){2)

entails an assessment of the degree of impact that action

will have on a listed species. Once evaluated, that degree

of impact is factored into all future section 7 consultations

conducted in the area. These impacts will continue to be

considered as part of the environmental baseline unless

the Service receives notice from the Federal agency that

the proposed action will not be implemented or unless the

biological opinion on the proposed action is no longer valid

because reinitiation of consultation is required.

In response to one comment, the Service notes that

Federal actions that have proceeded through early consul-

tation and that have received “no jeopardy” preliminary

biological opinions should be factored into the environ-

mental baseline. These actions, to be eligible for early

consultation, had to be nonspeculative, feasible actions,

and, because the preliminary biological opinion can later

be confirmed as a final biological opinion, this initial

review and conclusion by the Service must be considered

in other section 7 consultations.

App. 346

The term “cumulative effects” means those effects on

the species caused by other projects and activities unre-

lated to the action under consultation that the Service will

consider in formulating its biological opinion on the

subject action. One commenter opposed the proposed

definition of cumulative effects by arguing that the Act

does not require an analysis of cumulative effects in a

section 7 consultation. Citing section 7(c), the commenter

noted that biological assessments may be limited to an

examination of effects of “such action” on listed species.

The commenter urged the Service to strike cumulative

effects analysis from this rule because few Federal agen-

cies have the capability to recognize or assess cumulative

effects of State or private actions contemporaneously with

conducting section 7 consu!tation. According to the com-

menter, the Service, as the expert on current status of

listed species, should keep watch on these State and

private activities that come on line in a particular action

area. The Service responds that a Federal agency, when

evaluating the environmental impacts of a proposed

action, must comply with NEPA. Since this compliance

includes an analysis of cumulative effects, the Service

believes that it is the Federal agency’s responsibility to

develop this information. The cumulative effects analysis

conducted in compliance with the broad definition under

NEPA may be submitted to the Service by the Federal

agency when initiating formal consultation. The Service

can use this analysis and apply its narrower definition of

cumulative effects when analyzing whether a proposed

action, along with cumulative effects, violates section

7(aX(2) of the Act.

Other commenters, while not opposing the applicability

of cumulative effects analysis to section 7 consultations,

App. 347

believed that the proposed scope of “cumulative effects”

and “effects of the action” were too narrow. These com-

menters generally suggested that cumulative effects

should include the effects of all reasonably foreseeable

future Federal, State, and private actions. They stated

that this scope would be more in line with that mandated

under NEPA and argued that any lesser review could

detrimentally affect endangered species. The commenters

adamantly opposed any limitation on the foresight em-

ployed by the Service or Federal agencies that they be-

lieved would result from the proposal’s construction of

cumulative effects.

Section 7 consultation will analyze whether the

“effects of the action” on listed species, plus any additional,

cumulative effects of State and private actions which are

reasonably certain to occur in the action area, are likely to

jeopardize the continued existence of that species. Based

on this analysis, the Federal agency determines whether it

can proceed without exceeding the jeopardy standard. If

the jeopardy standard is exceeded, the proposed Federal

action cannot proceed without an exemption. This is a

substantive prohibition that applies to the Federal action

involved in the consultation. In contrast, NEPA is proce-

dural in nature, rather than substantive, which would

warrant a more expanded review of cumulative effects.

Otherwise, in a particular situation, the jeopardy prohibi-

tion could operate to block “nonjeopardy” actions because

future, speculative effects occurring after the Federal

action is over might, on a cumulative basis, jeopardize a

listed species. Congress did not intend that Federal

actions be precluded by such speculative actions.

Future Federal actions proposed for the same area

would have to be separately evaluated under section 7 and

App. 348

could not occur unless they were able, in their own right,

to avoid jeopardizing the continued existence of the af-

fected species or destroying or adversely modifying critical

habitat. Since all future Federal actions will at some point

be subject to the section 7 consultation process pursuant to

these regulations, their effects on a particular species will

be considered at that time and will not be included in the

cumulative effects analysis. However, those future State or

private actions (i.e., no Federal agency involvement) that

are “reasonably certain to occur” must be factored into

section 7(a)(2) evaluations. The Service agrees that cumu-

lative effects that are reasonably certain to occur will be

considered in determining the likelihood of jeopardy. The

final rule is amended accordingly, to clarify the duty to

consider cumulative effects.

One commenter thought that the “reasonably certain

to occur” standard was far too narrow and that it should

be amended to cover actions where proposals have been

made, and implementation schedules haye—been estab-

lished. This suggestion would open the door for speculative

actions to be factored into the “cumulative effects” analy-

sis, adding needless complexity into the consultation

process and threatening potential Federal actions which

pose minimal adverse impacts of their own with possible

“jeopardy” opinions due to speculative, State or private

projects that may never be implemented. For State and

private actions to be considered in the cumulative effects

analysis, there must exist more than a mere possibility

that the action may proceed. On the other hand, “reasona-

bly certain to occur” does not mean that there is a guaran-

tee that an action will occur. The Federal agency and the

Service will consider the cumulative effects of those actions

that are likely to occur, bearing in mind the economic,

App. 349

administrative, or legal hurdles which remain to be

cleared. The Service declines to alter its “cumulative

effects” definition to include State or private actions that

are not likely to occur.

One issue was raised concerning the application of

cumulative effects analysis to water projects. A commenter

contended that State and private projects that possess

senior water rights under State water law and that can

“reasonably be expected to occur” concurrently with the

Federal action should be considered as cumulative effects.

The Service notes that any State or private project (i.e., no

Federal agency involvement) that is reasonably certain to

occur must be considered during the analysis of cumula-

tive effects. Further, the Service believes that Federal

actions, whether authorized, funded, or carried out by

Federal agencies, that possess senior water rights should

be considered while analyzing the effects of the action. In

order to determine the effects of the action when a water

project is the subject of consultation in a State which

follows the prior appropriation doctrine, the project's

operation plan should indicate the priority of the project’s

water rights under State law and account for the future

effects of senior conditional water rights.

On a related matter, the Associate Solicitor’s opinion

on the scope of cumulative effects cited in the proposed

rule provided, in part, that only those effects of other

projects that are reasonably certain to occur prior to the

completion of the Federal action subject to consultation

under section 7(a)(2) should be considered during formal

consultation. This statement has been interpreted by some

to exclude from cumulative effects analysis those future

State and private actions that, while “reasonably certain

to occur,” would not be completed before the completion of

App. 350

the Federal action subject to consultation. Such an inter-

pretation places undue emphasis on the use of the word

“prior” while ignoring the central concept that the Associ-

ate Solicitor’s opinion intended to project: that a proposed

State or private activity be “reasonably certain to occur” in

order to be taken into account during cumulative impact

analyses. If such a State or private project satisfies the

“reasonable certainty” test, then it should be considered in

the cumulative impact analysis, even if it would go on line

sometime after completion of the federally authorized,

furded, or carried out project which was the subject of

consultation. To the extent that the Associate Solicitor’s

opinion created the opposite impression, the Service takes

this opportunity to clarify this point.

Moreover, as suggested by some commenters, and for

the reasons outlined above, the Service has deleted its

reference to the Interior Department position on “cumula-

tive effects” in 88 I.D. 903 (1981) in the definition section.

The Service disagrees with the commenter who stated that

the citation to the legal opinion in the proposed definition

denied the public meaningful comment on these regula-

tions. The policy was widely known, and it was explained

in the preamble to the proposed rule. The Associate

Solicitor’s opinion on “cumulative effects” is published in

Interior Decisions, a publication available to the general

public. Finally, the opinion does not represent a policy

change subject to Administrative Procedure Act (APA)

informal rulemaking proceedings. It represented Interior’s

legal interpretation of the scope of “cumulative effects”

under section 7, adopted and published in 1981 in keeping

with APA requirements. 5 U.S.C. 552(a). Therefore, no

reproposal is needed on this issue.

App. 351

The definition of “designated non-Federal representa-

tive” is adopted from the proposal in part. First, in re-

sponse to a comment, the Service explains that the non-

Federal representative may conduct informal consuita-

tions (§ 402.13) and/or prepare biological assessments

(§ 402.12). However, Federal agencies cannot delegate

their role in initiating formal consultation, a conference, or

early consultation. The second sentence of the proposed

definition has been deleted, but a new § 402.08 has been

added to further explain the role of the designated non-

Federal representative.

The proposed definitions of “destruction or adverse

modification” and “jeopardize the continued existence of”

received a lot of attention from commenters. Both defini-

tions contained, as did the 1978 rule, the phrase “survival

and recovery.” The final rule retains the language of the

proposed definitions, except for the changes noted below.

Also connected with these terms is the definition of “recov-

ery.” The “recovery” of a listed species means that the

status of the species has improved to the point at which it

may be removed from the Lists of Endangered and

Threatened Wildlife and Plants.

The principal controversy involving the “jeopardy” and

“destruction or adverse modification” definitions was that,

under the proposed rule, to find that an action is likely to

jeopardize a listed species or result in the destruction or

adverse modification of critical habitat, the Service must

identify detrimental impacts to “both the survival and

recovery” of the listed species. The conjunction “and” was

used in the 1978 rule’s definitions of these phrases, but the

word “both” was added by the proposed rule to emphasize

that, except in exceptional circumstances, injury to recov-

ery alone would not warrant the issuance of a “jeopardy”

App. 352

biological opinion. The Service adopts these definitions

substantially without change from the proposed rule; this

does not represent a change in policy, as one commenter

charged, because the Service has internally interpreted

the “jeopardy” standard as requiring detrimental impacts

to the continued existence of a species under a joint

survival and recovery concept. Other Federal agencies are

assured that the same “jeopardy” standard under which

their actions have been evaluated in the past will be

continued under this final rule.

Several commenters urged the Service to strike the

“and” and insert “or” in the definitions of “jeopardy” and

“destruction or adverse modification.” They argued that

injury to recovery for an already depleted species would

require the issuance of a jeopardy opinion. They also

remarked that the Service’s position disregarded the

conservation requirements of the Act, failed to adequately

protect critical habitat, operated to weaken or nullify

recovery efforts, and otherwise violated the purposes and

policies of the Act.

These commenters misconstrued the Service's role in

conducting consultations under section 7(a)(2) of the Act. |

The purpose of consultation is to identify conflicts between

proposed Federal actions and the “jeopardy” standard of

section 7(a)(2). The “continued existence” of the species is

the key to the jeopardy standard, placing an emphasis on

injury to a species’ “survival.” However, significant im-

pairment of recovery efforts or other adverse effects which

rise to the level of “jeopardizing” the “continued existence”

of a listed species-can also be the basis for issuing a

“jeopardy” opinion. The Service acknowledges that, in

many cases, the extreme threats faced by some listed

App. 353

species will make the difference between injury to “sur-

vival” and to “recovery” virtually zero.

One commenter disagreed that actions adversely

affecting survival of a species will also always adversely

affect its recovery. The commenter did not cite examples

where an action that jeopardized “survival” of a species

would not jeopardize its “recovery.” The Service is not

aware of any examples and believes that it would be very

difficult to recover a species whose survival had been

placed in jeopardy. The very concept of “jeopardy” is that a

Federal agency should not authorize, fund, or carry out an

action that would injure a listed species’ chances for

survival to the point that recovery is not attainable. If

survival is jeopardized, recovery is also jeopardized. As

noted above, though, these concepts are generally consid-

ered together in analyzing effects, and it is difficult to

draw clear-cut distinctions.

The concept of “survival” is discussed above, but is not

defined in the Act or in these regulations. Two commenters

felt that “survival” should be defined in the regulations,

and one urged the Service to adopt the following specific

definition:

“Survival” for a species means retention of a sufficient

number of individuals and/or populations with necessary habitat

to insure that the species will keep its integrity in the face of

genetic recombination and known environmental fluctuations.

The Service agrees with the criteria set out in the

above definition, but declines to adopt a regulatory defini-

tion for “survival” because this concept varies widely

among listed species. The Service will apply the statutory

App. 354

standard of jeopardy to the continued existence of a

species on a case-by-case basis, taking into account the

particular needs of and the severity and immediacy of

threats posed to a listed species. The Service is not at-

tempting to predetermine the results of any future consul-

tations by announcing these interpretations of the

“jeopardy” standard, but instead is emphasizing what

“jeopardy” is and how it should be applied in the section

7(a)(2) process.

One commenter urged the Service to go further and

forbid any Federal action to proceed, regardless of a “no

jeopardy” finding, if the proposed action would adversely

afiect the recovery of a listed species. Numerous comment-

ers cited sections 2(c)(1), 3(3), and 7(a)(1) of the Act as

authority for the Service to ban Federal agency actions

that “violate the requirement to conserve endangered

species.”

The commenters misinterpret the statutory changes

which the Amendments have made to section 7, and they

misconstrue court decisions which have noted the appar-

ent “heightened” responsibility of the Secretary. The

Service will undertake programs for the conservation of

listed species and will consult with other Federal agencies

attempting to do the same. The Service will not, nor does

it have the authority to, mandate how or when other

Federal agencies are to implement their responsibilities

under section 7(a)(1), nor is the Service authorized to issue

a biological opinion under section 7(a)(1) of the Act. Sec-

tion 7(a)(1) has a limited purpose under the Act: to author-

ize Federal agencies to factor endangered species

conservation into their planning processes, regardless of

other statutory directives.

App. 355

In contrast, section 7(a)(2) contains the mandatory

“jeopardy” standard. The prohibitory features of section 7,

and the exemption process added by the 1978 Amend-

ments, focus on the provisions of section 7(a)(2). Although

there is no express legislative history directly weighing

and comparing the relative strengths of section 7(a)(1)

with 7(a)(2), there can be no doubt that Congress consid-

ered the jeopardy standard of section 7(a)(2) as being the

substantive cornerstone of section 7:

The term “is likely to jeopardize” is used because the funda-

mental obligation of section 7(a) of the act is that Federal agencies

insure their actions do not jeopardize the continued existence of

an endangered or threatened species.

S. Rep. No. 151, 96th Cong., 1st Sess. 4 (1979) (em-

phasis added). Congress intended that the “jeopardy”

standard be the ultimate barrier past which Federal

actions may not proceed, absent the issuance of an exemp-

tion. The commenters’ argument would require Federal

actions to halt if they failed to conserve listed species, a

result clearly not intended by Congress. Congress in-

tended that actions that do not violate section 7(a)(2), or

actions receiving an exemption from the requirements of

that subsection, be allowed to proceed.

Commenters argued that it would be a violation of

section 7(a)(1) for the Service to issue a “no jeopardy”

biological opinion for a proposed Federal action that would

have an adverse effect on the recovery of a listed species.

As previously stated, the Service lacks authority to issue

biological opinions under that subsection, and the Act does

not mandate particular actions to be taken by Federal

agencies to implement 7(a)(1). Furthermore, adverse

effects not rising to the level of “jeopardizing the continued

App. 356

existence” of a listed species cannot be the basis for issuing

a jeopardy opinion.

The Service disputes two commenters’ assertions that

“the Service now proposes to allow the ‘continued exis-

tence’ of a listed species to reach a state of likely jeopardy.”

The Service has followed and will continue to follow the

policy of strictly applying the jeopardy standard of section

7(a)(2) in the consultation process. The Service has not

and will not relax the statutory standard.

One commenter stated that limiting the definition of

“destruction or adverse modification” to critical habitat is

illogical. This limitation is mandated by the strict lan-

guage of section 7(a)(2) and cannot be altered by the

Service, although habitat destruction can be the basis for a

jeopardy opinion in appropriate cases.

Another commenter requested that examples be given

of actions that might indirectly alter critical habitat. The

Service responds with the following examples of indirect

alteration of critical habitat (which is not intended as an

exclusive list): ground water pumping that occurs on land

adjacent to the critical habitat area, but nevertheless

diminishes essential ground water levels within the

critical habitat; air pollution created by an action not

occurring directly on the critical habitat area that causes a

deterioration of essential air quality levels in the critical

habitat; contamination of water supply within the critical

habitat caused by release of toxic substances outside of the

critical habitat area; etc.

In the definition of “jeopardize the continued existence

of,” one commenter suggested the word “could” be substi-

tuted for -“would” in the phrase “would be expected, di-

rectly or indirectly, to reduce appreciably the likelihood of

App. 357

... the survival and recovery of listed species. ...” Such a

change would be an unwarranted deviation from the

language of the 1978 rule in light of subsequent Amend-

ments to the Act. The Service retains the substance of the

proposed language, but does delete the phrase “or other-

wise adversely affecting the species” because, as several

commenters suggested, the phrase is confusing and adds

nothing to the definition.

In response to several comments, the Service has

modified the definition of “recovery” to make it clear that

recovery is not attained until the threats to the species as

analyzed under section 4(a)(1) of the Act have been re-

moved. The protective measures provided for listed species

under the Act are no longer needed if endangered or

threatened status is no longer applicable to a species

under section 4(a)(1).

The definition of “Director” has been modified by the

addition of the phrase “or his authorized representative”

after “the FWS regional director” and “Assistant Adminis-

trator for Fisheries” to accommodate present and future

delegations of authority to carry out certain consultation

responsibilities. Although the Minerals Management

Service requested that all Outer Continental Shelf (OCS)

section 7 biological opinions issued by the FWS be signed

by the Washington Office, the authority to sign such

opinions will remain with the regional offices because they

have been staffed specifically to conduct all interagency

consultations and to sign the resulting biological opinions.

The term “early consultation” was included in the

proposed rule pursuant to the provisions of section 7(a)(3).

This section authorizes the Service to consult with Federal

agencies at the request of prospective applicants, prior to

App. 358

the submission of the permit or license application to that

Federal agency. The definition has been modified to

reference the appropriate section of the Act.

One commenter requested that, instead of using the

term “early consultation,” the Service refer to this process

as “consultation on behalf of prospective applicants.” The

commenter was concerned that, by calling this pre-

application process “early consultation,” the Service would

fail to alert Federal agencies and applicants of the need to

determine impacts to endangered or threatened species

early in the planning stages of all of their actions, regard-

less of whether the consultation is early, informal, or

formal. The Service retains the label “early consultation”

due to its convenience, its frequent use in the committee

reports on the 1982 Amendments, and its common accep-

tance within and outside the Service. The Service believes

that the language provided in § 402.14(a), advising Fed-

eral agencies to review their actions at the earliest possi-

ble time, provides adequate safeguards to address the

commenters’ concerns.

The definition of “Federal agency” has been deleted

since it is defined in section 3(7) of the Act. The Service

declines to expand the statutory definition to accommo-

date one commenter’s concern. The statutory definition

adequately provides notice that all departments, agencies,

and instrumentalities of the United States come within

the scope of section 7. The Service will not interpret this

term further in the final rule.

The definition of “formal consultation” has been

modified to specify that it is the consultation required

under section 7(a)(2) of the Act. Other minor, technical

changes have also been made. The phrase “after it has

App. 359

been determined, through informal consultation with the

Service, that its action may adversely affect listed species

or critical habitat” has been deleted from the proposed

definition because, as recommended by some commenters,

informal consultation is strictly an optional process.

Although the Federal agency may elect to enter into

informal consultation to determine if formal consultation

is required, the Federal agency can initiate formal consul-

tation any time that it determines its action may affect

listed species or critical habitat.

“Further discussion” was an optional process included

in the proposed rule. It provided the Federal agency and

any applicant the opportunity to continue consultation

after the issuance of a biological opinion in order to discuss

with the Service any reasonable and prudent alternatives

and any conservation recommendations. Recommenda-

tions and alternatives could be refined or developed during

these discussions, and consultation would terminate with

the Federal agency’s written notice of its final decision on

‘the action. Because of concerns expressed by commenters,

this provision contained in proposed § 402.16 has been

deleted from the final rule.

Although several commenters supported this provi-

sion, many opposed further discussion contending that it

is unnecessary, that all reviews and discussions should

occur prior to the issuance of the biological opinion, that it

extends consultation beyond the statutory time limits, and

that it lacks statutory authority. Although the process was

optional, some commenters believed that there was an

implication that the Federal agency or applicant would have

a duty to engagé in further discussion.

App. 360

Although further discussion has been deleted, the

Service is available to discuss the biological opinion, any

reasonable and prudent alternatives, and any conserva-

tion recommendations with the Federal agency and any

applicant on an informal basis. If revisions to the opinion

are necessary, consultation can be reinitiated and a re-

vised opinion issued.

“Incidental take” has been clarified in the final rule as

those takes that result from, but are not the purpose of,

carrying out an otherwise lawful activity conducted by the

Federal agency or the applicant. As requested by one

commenter, the Service explains that otherwise lawful

activities are those actions that meet all State and Federal

legal requirements except for the prohibition against

taking in section 9 of the Act. The Service believes that the

definition, as clarified in the final rule, is adequate.

The definition of “informal consultation” has been

clarified in the final rule to indicate that it is an optional

process that includes all discussions, correspondence, etc.,

between the Service, Federal agency, and designated non-

Federal representative prior to formal consultation. To

address one commenter’s concerns, “if required” has been

included after “formal consultation” to clarify that formal

consultation is not always required after informal consu!-

tation. Through informal consultation, a Federal agency

may determine that formal consultation is not required.

The definition of “listed species” is adopted as pro-

posed. Contrary to the concern of one commenter, aquatic

invertebrates are not excluded from this definition, be-

cause all listed species in 50 CFR 17.11-17.12 are specifi-

cally included.

The definition of “major construction activity” was

included in the definition of biological assessment in the

App. 361

proposed rule and is adopted substantially as proposed. As

suggested by many commenters, it has been made a

separate definition. Whether a Federal action is a major

construction activity, as defined in these regulations, is the

standard used for determining whether a Federal agency

must prepare a biological assessment. A “major construc-

tion activity” is defined as a construction project (or other

undertaking having similar physical impacts) that is a

major Federal action significantly affecting the quality of

the human environment for purposes of NEPA. The term

encompasses dams, buildings, pipelines, roads, water

resource developments, channel improvements, and other

such undertakings which significantly modify the physical

environment.

A vast array of comments were received concerning

the scope of a major construction activity that requires the

preparation of a biological assessment. Several comment-

ers noted that only major Federal actions requiring the

preparation of an environmental impact statement (EIS)

pursuant to NEPA should require the preparation of a

biological assessment under section 7(c) of the Act. Other

commenters argued that assessments can only be required

for major Federal actions involving construction activities,

and suggested that the phrase “or other undertakings

having similar physical impacts” be eliminated from the

definition. Four commenters thought that the standard in

the proposed rule was too narrow, because the limitation

to major Federal actions, and/or the limitation to construc-

tion projects and other undertakings having similar

physical impacts, were arbitrary and without legal basis.

The Service has adopted the definition of major construc-

tion activity as proposed for the reasons set out below.

The legislative history of section “7(c) of the Act plainly

focused the mandatory duty to prepare biological assessments

App. 362

on “major Federal actions . . . designed primarily to result

in the building or erection of dams, buildings, pipelines

and the like.” H.R. Conf. Rep. No. 697, supra. The two-

pronged regulatory test adopted in this rule — major

Federal action and construction project (or other under-

taking having similar physical impacts) — clearly tracks

the quoted language from the Conference Report to the

1979 Amendments. The Service will not require biological

assessments for projects that are not major Federal

actions for purposes of NEPA. Further, the Service will not

require biological assessments for actions that do not

involve construction or activities having physical impacts

similar to construction, such as dredging, blasting, etc.

This limitation derives support from the 1979 Conference

Report reference to actions designed primarily to result in

the building or erection of various projects. These other

“potentially destructive activities,” H.R. Rep. No. 1625,

supra, having physical impacts similar to construction

projects, will require the preparation of an assessment,

but only if they are major Federal actions for purposes of

NEPA.

The Service declines to limit the scope of the definition

of a major construction activity to major Federal actions

involving construction projects, because other potentially

destructive activities that are major Federal actions may

have similar physical impacts and should be included. The

Service is confident that the courts will be able to apply

this standard consistent with the Act and the legislative

history.

Contrary to the belief of one commenter, the Service

has not abrogated its authority under section 7(c). That

commenter urged the Service to change this rule by

requiring biological assessments “for actions that, taking

App. 363

into consideration cumulative effects, may be ‘potentially

destructive.’” Citing a February 1980 legal opinion issued

by the Assistant Soliciter for Fish and Wildlife, Depart-

ment of the Interior, the commenter noted that cumulative

effects may trigger the requirement that ar assessment be

prepared, although the Service must defer to the Federal

agency's decision on whether a major Federal action exists.

Contending that Congress would have used the- word

“shall” instead of “may” in the last sentence of section

-7(c\(1) if it had intended that assessments be required only

for major Federal actions for purposes of NEPA, the

commenter argued that the definition of “major construc-

tion activity” should be expanded:

“Major Construction activity” means any planned, temporary,

or permanent physical modification to the environment. Examples

of such projects include but are not limited to; dredging, drilling,

filling, mining, site preparation, road construction, the erection

of structures such as dams and buildings, or any other poten-

tially destructive activities.

The commenter’s suggested language goes well

beyond the above-cited legislative history of the Act which

clearly limited the biological assessment requirement to

major Federal actions within the meaning of NEPA that

are construction projects or that involve similar physical

impacts. Further, the legal opinion of the Assistant Solici-

tor cited by the commenter does not support the com-

menter’s argument because that opinion dealt with

cumulative effects of a proposed construction project and a

basic rule of NEPA case law that cumulative impacts of an

action can trigger the requirement that an EIS be prepared.

Thus, the basic elements of this rule’s requirements — major

Federal action (e.g., EIS, or the functional equivalent,

App. 364

required) and construction project (or activity involving

similar physical impacts) - were assumed to be appropri-

ate standards by the Assistant Solicitor. The use of the

word “may” instead of “shall” in section 7(c) means nothing

more than Congressional intent that the duty to coordi-

nate these review processes is discretionary with the

Federal agency. ;

As requested by one commenter, the final definition

clearly states that an action must be both a major Federal

action for purposes of NEPA and a construction project (or

other activity involving similar impacts). Therefore, it

plainly follows that, although dams, pipelines, etc. are

construction activities, a biological assessment is not

required unless the action is also a major Federal action.

Two commenters argued that OCS leasing, explora-

tion, and development/production activities should be

exempt from the section 7(c) requirement because such an

analysis is presently covered by NEPA compliance as

addressed in the Outer Continental Shelf Lands Act.

Other commenters agreed with the Service that biological

assessments would be required for development/production

activities on the OCS, and, generally, would not be re-

quired for leasing and exploration activities that do not

involve a significant modification of the physical environ-

ment. The Service adopts its position as proposed, because

no exemption exists under section 7(c) if a biological

assessment is required for an action. In some instances,

OCS exploration activities may require the preparation of

a biological assessment, e.g., major Federal action involv-

ing exploration through construction of artificial gravel

islands. However, in most cases major Federal exploration

activities on the OCS wil! involve the drilling of test wells,

App. 365

actions that will not require the preparation of assess-

ments.

The definition of “preliminary biological opinion” is

adopted as proposed.

The definition of “proposed critical habitat” is adopted

as proposed with the addition of the phrase “or revised”

after “designated.” The commenter that suggested this

correction accurately noted that proposals may be made to

designate or revise critical habitat under section 4 of the

Act.

The definition of “proposed species” is adopted as

proposed.

“Reasonable and prudent alternatives” is defined in

the final rule. Section 7(b) of the Act requires the Service

to include reasonable and prudent alternatives, if any, in a

“jeopardy” biological opinion. An alternative is considered

reasonable and prudent only if it can be implemented by

the Federal agency and any applicant in a manner consis-

tent with the intended purpose of the action, and if the

Director believes it would avoid the likelihood of jeopardiz-

ing the continued existence of listed species or resulting in

the destruction or adverse modification of critical habitat

of such species. Further, the Service should be mindful of

the limits of a Federal agency's jurisdiction and authority

when prescribing a reasonable and prudent alternative.

An alternative, to be reasonable and prudent, should be

formulated in such a way that it can be implemented by a

Federal agency consistent with the scope of its legal

authority and jurisdiction. However, the Service notes that

a Federal agency’s responsibility under section 7(a)(2)

permeates the full range of discretionary authority held by

that agency; i.e., the Service can specify a reasonable and

App. 366

prudent alternative that involves the maximum exercise of

Federal agency authority when to do so is necessary, in the

opinion of the Service, to avoid jeopardy. The Service

recognizes that economic and technological feasibility are

factors to be used in developing reasonable and prudent

alternatives, as requested by one commenter. The defini-

tion of “reasonable and prudent alternatives” has been

amended to reflect these considerations. If there are no

alternatives that meet the definition of “reasonable and

prudent alternatives,” the Service will issue a “jeopardy”

biological opinion without alternatives.

Two commenters stated that reasonable and prudent

alternatives should include mitigation measures designed

to reduce adverse effects, i.e., conservation recommenda-

tions. One of those commenters urged the Service to limit

the scope of recommended alternatives to those “consistent

with the scope, magnitude, and duration of the project as

well as the extent of its adverse effects.” First, because

there is a distinction between “reasonable and prudent

alternatives” (that satisfy section 7(a)(2)) and “conserva-

tion recommendations” (that are authorized by section

7(a)(1)), the Service declines to include conservation

measures within the scope of the definition. Second, the

Service agrees that reasonable and prudent alternatives

should be consistent with the intended purpose of the -

action and should therefore be economically and techno-

logically feasible, but the Service cannot limit its range of

choices to the criteria suggested by the commenter. Rea-

sonable and prudent alternatives must cover the full

gamut of design changes that are economically and techno-

logically feasible for an action, independent of who is

sponsoring the action.

App. 367

Two commenters asked that “reasonable and prudent

measures” be defined, and the Service has inserted a

definition in the final rule. This addition clarifies the

distinction between “reasonable and prudent alternatives”

included in a “jeopardy” biological opinion and “reasonable

and prudent measures” provided in an incidental take

statement. The Service agrees with several commenters

that reasonable and prudent measures are not the same as

reasonable and prudent alternatives. Substantial design

and routing changes — appropriate only for alternatives to

avoid jeopardy — are inappropriate in the context of

incidental take statements because the action already

complies with section 7(a)(2). The commenter that advo-

cated an “alternatives” approach for reasonable and

prudent measures misapplied the legislative history of the

1982 Amendments. Reasonable and prudent measures

were intended to minimize the level of incidental taking,

but Congress also intended that the action go forward

essentially as planned. Therefore, the Service believes that

they should be minor changes that do not alter the basic

design, location, duration, or timing of the action. The

section 7 obligations of Federal agencies are not expanded

by the application of reasonable and prudent measures,

which strictly govern the scope of the section 9 exemption

for incidental takings.

The definition of “Service” is adopted as proposed.

Section 402.03 Applicability.

This section, which explains the applicability of

section 7, implicitly covers Federal activities within the

territorial jurisdiction of the United States and upon the

high seas as a result of the definition of “action” in

App. 368

§ 402.02. The explanation for the scope of the term “action”

is provided in the discussion under § 402.01 above.

Section 402.04 Counterpart Regulations.

The Service has retained the counterpart regulations

section of the 1978 rule as the new § 402.04 that author-

izes the drafting of joint counterpart regulations by Fed-

eral agencies and the Service. “These counterpart

regulations would allow individual Federal agencies to

‘fine tune’ the general consultation framework to reflect

their particular program responsibilities and obligations.”

43 FR 870, 871 (Jan. 4, 1978).

Counterpart regulations must be published first as

proposed rules with a minimum 60-day public comment

period. Such counterpart regulations must retain the

overall degree of protection afforded listed species required

by the Act and these regulations. Changes in the general

consultation process must be designed to enhance its

efficiency without eliminating ultimate Federal agency

responsibility for compliance with section 7. As long as the

general consultation process is used as a starting point,

Federal agencies can anticipate little difficulty in securing

approval of the Service for counterpart regulations.

One Federal agency commented that the counterpart

regulation process is a time-consuming alternative. The

Service admits that informal rulemaking takes time and

effort, but believes that the “fine tuning” that could occur

through the development of counterpart regulations

might, in the long run, provide a solid return in time and

resources saved through the use of a more compatible

consultation procedure.

App. 369

Section 402.05 Emergencies.

Section 402.05 provides a modified consultation

procedure for the Service to respond to emergency situa-

tions. This provision applies to situations involving acts of

God, casualties, disasters, national defense or security

emergencies (added to the rule in response to public

comments), etc.

Upon request by the Federal agency, the Service may

carry out consultation through procedures other than

those provided under these regulations, as long as such

emergency procedures are consistent with sections 7(a)-(d)

of the Act. This allows, for example, consultation through

informal means (e.g., a telephone call) and, therefore,

rapid responses to emergency situations.

Several commenters suggested that specific proce-

dures should be set out to provide guidance to Federal

agencies facing emergency situations. One commenter

suggested that consultation could be initiated informally,

such as through a telephone call, and the Service could

then communicate its information and recommendations

over the telephone. Because of the severe time constraints

inherent in an emergency, this informal approach is the

method the Service anticipates will be used by a Federal

agency to conduct a consultation for a bona fide emer-

gency. One commenter felt that minimum requirements

should include “documentation of the nature of the emer-

gency and justification for an expedited consultation.” The

Service agrees and has required, in a new paragraph (b) to

this section, that the nature of the emergency and the

justification for using an expedited process be documented

and forwarded to the Service. However, the Service has

not required that this be done during the emergency or

App. 370

expedited consultation, as this may not always be possible.

The new paragraph (b) requires that the Federal agency

conduct an “after the fact” consultation. The Service will

evaluate the information submitted by the Federal agency,

i.e., the nature of the emergency actions, justification for the

expedited consultation, and an evaluation of the impacts to

listed species and critical habitat, and issue a biological

opinion including the information and recommendations

given during the emergency consultation. This will serve

not only to document fully the consultation, but may assist

the Federal agency in responding to similar emergencies.

One commenter argued that, when dealing with a fire,

flood, earthquake, or storm, there is not enough time or

opportunity for a Federal agency to undertake consulta-

tion through an alternate process determined by the

Director to be consistent with section 7. The Service notes

that the utmost flexibility is needed to handle the most

extreme emergencies and believes that the informal

process outlined in this section would satisfy the com-

menter’s concern for the availability of prompt consulta-

tion and decisionmaking in emergency situations.

The Service further recognizes that it is sometimes

necessary to take immediate steps to contain, limit, or

alleviate an emergency in order to protect health, safety,

and welfare prior to initiating any form of consultation.

However, the Service would like to stress the fact that its

early involvement is important in order to take advantage

of its expertise in minimizing the effects of emergency

response activities on endangered and threatened species.

Federal agencies must exercise discretion when respond-

ing to an emergency as to when to consult with the Ser-

vice. This will depend on the nature of the emergency and

the actions that are immediately required. The Federal

App. 371

agency should contact the Service as soon as practicable,

keeping in mind the informal nature of emergency consul-

tation and Service expertise in minimizing the impacts of

emergency response activities on endangered and threat-

ened species.

Section 402.06 Coordination with Other Environmental

Reviews.

This section on coordination with other environmental

reviews contains paragraphs (a) and (b) of § 402.10 and

paragraph (c) of § 402.17 of the proposed rule. The sub-

stance of these paragraphs has been adopted, but the

format has been altered.

These regulations, following the 1978 rule, allow

Federal agencies to coordinate their consultation, confer-

ence, and biological assessment responsibilities under the

Act with the agency’s responsibilities under other statutes

such as NEPA (42 U.S.C. 4321 et seg.) or the Fish and

Wildlife Coordination Act (FWCA, 16 U.S.C. 661 et seg.).

The Service encourages Federal agencies to coordinate

these responsibilities, but believes it is preferable to allow

Federal agencies to do so in a manner that best conforms to

their particular actions and which they believe is most

efficient. Therefore, the sentences in the proposed § 402.10(b)

stating that biological assessments should be incorporated

into the documents required by other statutes (such as

NEPA) have been dropped from the final rule.

Several commenters applauded these paragraphs

because the coordination of environmental reviews would

reduce duplication of paperwork and save time. One

commenter requested guidance on how a NEPA review of

endangered species issues should be conducted. The

App. 372

Service is not in a position to provide criteria that will

ensure adequate NEPA compliance on endangered species

issues. The Service suggests that the commenter contact

the Council on Environmental Quality, the agency in

charge of NEPA compliance, to obtain such information.

Another commenter expressed concern that, in simpli-

fying the consultation process, safeguards should be used

to avoid potential abuse and substantive problems. The

commenter feared that, without safeguards, NEPA compli-

ance might be construed as being less necessary on endan-

gered species matters. The Service is also concerned that it

retain sufficient review capability to identify potential

conflicts between proposed Federal actions and listed

species. Therefore, it has slightly altered its consultation

procedures in this final rule to ensure that all Federal

actions that “may affect” listed species receive some degree

of review under informal or formal consultation.

The concluding sentences of paragraph (a) emphasize

that although, for example, a biological assessment can be

incorporated into an EIS, the procedures of these regula-

tions also must be satisfied to ensure adequate and timely

analyses during the section 7 consultation process. These

sentences also express the intent of the Service to avoid a

fragmented analysis of environmental concerns through

the Service’s direct efforts to provide a coordinated review.

The Service declines to delete these sentences as requested

by several commenters.

Under paragraph (b), the Service agrees with a

comment that the biological opinion should be stated in

the final environmental impact statement or environ-

mental assessment. A statement of the opinion may be a

summary of its findings and conclusions, contrary to the

App. 373

fear of one commenter that the entire opinion must be

repeated in the text of the NEPA document. The Service

does feel that the entire opinion should be attached as an

exhibit to the NEPA document if completion time permits.

Section 402.07 Designation of Lead Agency.

This section, which governs the designation of a lead

agency, is adopted from § 402.10(d) of the proposed rule.

One commenter requested that the section be amended so

that only the lead agency is required to notify the Director

that it will be conducting consultation on behalf of itself

and all other cooperating agencies. The Service has

adopted this suggestion.

Section 402.08 Designation of Non-Federal Representative.

A new § 402.08 has been added to the final rule to

clarify the role of the designated non-Federal representa-

tive and was derived from §§ 402.02 and 402.12 (a) and

(b\5) of the proposed rule. Because the designated non-

Federal representative may or may not be the applicant,

there is a difference in the role the representative can play

in the consultation. If the representative is not the appli-

cant, the information-gathering functions, through infor-

mal consultation (§ 402.13) and/or through the preparation

of a biological assessment (§ 402.12), is the full extent of

its participation. However, if the representative is an

applicant, its role in consultation is two-fold. As the

representative, it may conduct the information-gathering

functions identified above; as the applicant, it may con-

tinue its participation into formal consultation.

If an applicant is involved and does not desire to be

the designated non-Federal representative, the Federal

App. 374

agency and the applicant must agree on the party to be

designated. The Director shall be notified, in writing, if a

non-Federal entity has been designated to represent the

Federal agency for the informal consultation or biological

assessment procedures.

One commenter stated that prior notice to the Direc-

tor of the designation of a non-Federal representative is

unnecessary. The Service disagrees because there is a

legitimate need for it to be certain of the Federal agency's

concurrence in the representation. However, the Service

notes that there is a degree of flexibility here; i.e., designa-

tion in advance for a continuous action or for a group of

related actions is acceptable. In response to one comment,

the Service agrees that the designated non-Federal repre-

sentative may only submit a species list under the biologi-

cal assessment procedures (§ 402.12) if the Federal agency

has, previously to or simultaneously with this notice,

provided its written designation to the Director.

Another commenter questioned the Service’s authority

to conduct informal consultations with non-Federal repre-

sentatives in place of the Federal agencies. The Service

acknowledges that the Federal agency must retain the

responsibility to initiate formal consultation along with its

ultimate responsibility to ensure that its actions are not

likely to jeopardize listed species, but the designation of a

representative by the Federal agency to conduct informal

consultation does not lessen these responsibilities or

eliminate the Federal agency's duty to review its actions.

Instead, the designation of a representative allows the

Federal agency to coordinate all of its environmental

reviews, thereby saving time and resources to obtain a

single, comprehensive analysis of the action and its

potential impacts. The agency must still review the work

App. 375

product and independently reach its own conclusions and

decisions. The representative does the ground work (data

compilation and synthesis); the Federal agency cannot

delegate its duty to review, analyze, and formally consult.

Concerned that a conflict of interest could exist if

applicants were allowed to be designated as non-Federal

representatives, one commenter cited 40 CFR 1506.5(c)

(NEPA regulation) as authority for eliminating applicants

from the field of potential representatives. The Service

declines to make the suggested change for the following

reason. Section 7(c)(2) itself recognizes that exemption

applicants (including permit or license applicants) may

prepare biological assessments in cooperation with the

Service and under the supervision of the Federal agency.

This express statutory opportunity for “interested parties”

(as applicants would always be) to prepare biological

assessments runs counter to the NEPA rule and shows the

clear Congressional intent in favor of full applicant in-

volvement in the section 7 process. Although applicants

may fill the role of non-Federal representatives, the

ultimate responsibility for compliance with section 7

remains with the Federal agency. In response to one

commenter, the regulations have been changed to elimi-

nate the requirement that the Federal agency “participate

in the preparation” of the biological assessment. The

Service believes that the Federal agency may fulfill its

responsibilities by providing guidance and supervision,

and by independently reviewing and evaluating the work

product of the applicant. Responsibility for carrying out

negotiations with the Service may not be delegated to the

applicant/representative, as suggested by this commenter.

In addition, Federal agencies cannot delegate their role in

App. 376

initiating formal consultation, conference, or early consul-

tation. .

Section 402.09 Irreversible and Irretrievable Commitment

of Resources.

Section 7(d) of the Act provides that, after initiation of

consultation required under section 7(a)(2), the Federal

agency and any applicant shall make no irreversible or

irretrievable commitment of resources with respect to the

Federal action which has the effect of foreclosing the

formulation or implementation of any reasonable and

prudent alternatives that would avoid violation of section

7(a)(2). This prohibition does not apply to actions affecting

proposed species or proposed critical habitat. This manda-

tory restriction on commitment of resources is set out in

§ 402.09 of the final rule (formerly § 402.11 of the pro-

posal). In response to comments, the language of the

proposed rule was corrected to conform more closely to

section 7(d). Another commenter requested that the

sentence dealing with section 7(d) be amended by adding

“measures” after the phrase “reasonable and prudent

alternative[s]” to bring the regulation in line with the

statute. The Service declines to make this change because

it would tend to confuse “reasonable and prudent alterna-

tives” that are included in jeopardy biological opinions

with “reasonable and prudent measures” that are included

in an incidental take statement under section 7(b)(4) of the

Act. The proposed language describing the section 7(d)

prohibition accurately implements the Act and is adopted

in this final rule.

The proposed rule addressed the duration of the

section 7(d) prohibition as follows:

App. 377

This requirement exists until: a “no jeopardy” biological

opinion is issued by the Service ... ; the Federal agency adopts

reasonable and prudent alternatives; or an exemption is granted

under section 7(h).

Proposed rule, 48 FR 29990, 30000 (June 29, 1983),

proposed to be codified at 50 CFR 402.11. Several com-

menters asked for a clarification or expansion of these

criteria that terminate section 7(d) restrictions. Noting

that the Act is silent as to when the section 7(d) prohibi-

tion ceases, one commenter contended that the prohibition

should end when consultation is terminated. Another

commenter, concerned that the proposed language would

deprive Federal agencies of the responsibility and author-

ity to determine compliance with section 7(a)(2), urged the

addition of a fourth criterion that would terminate the

section 7(d) prohibition if “the Federal agency determines

that its proposed action will not jeopardize the continued

existence of endangered and threatened species or ad-

versely affect critical habitat.” Another commenter went

further and urged the Service to adopt other criteria

where Federal agency compliance with section 7(a)(2)

would remove the section 7(d) restriction. Two other

commenters felt that the second criterion — adoption of

reasonable and prudent alternatives — must be restricted

to those recommended by the Service. They opposed

allowing the Federal agency to formulate its own “reason-

able and prudent alternatives” without Service approval in

order to avoid the prohibition of section 7(d).

The commenters raise valid concerns that illustrate

the need to reexamine the duration of the prohibition

against the irreversible and irretrievable commitment of

resources. First, the Service recognizes that, although its

App. 378

biological opinions issued by authority of section 7(b) are

entitled to great deference, the ultimate decision of

whether to proceed with an action in light of section 7

responsibilities rests with the Federal agency. The pro-

posed language did preempt Federal agency discretion by

placing an agency that disagreed with the conclusion of

the Service’s biological opinion in the awkward position of

facing section 7(d) restrictions on its action, even though it

had determined through its own analysis that the section

7(a)(2) standards were satisfied. Second, case law indi-

cates that section 7(d)’s proscriptive force continues while

Federal agency efforts to conform its action to the re-

quirements of section 7(a)(2) are “ongoing.” See North

Slope Borough v. Andrus, 642 F.2d 589, 611 n.143 (D.C.

Cir. 1980); Conservation Law Foundation of New England,

Inc. v. Andrus, 623 F.2d 712, 714 n.1 (1st Cir. 1979). The

final rule has been amended to provide that the section

7(d) prohibition is in force during consultation and contin-

ues until the requirements of section 7(a)(2) are satisfied.

Therefore, if a Federal agency receives a “no jeopardy”

biological opinion from the Service or chooses any reason-

able and prudent alternative recommended by the Service,

the requirements of section 7(a)(2) are met and the section

7(d) prohibition expires. If the Federal agency disagrees

with a “jeopardy” biological opinion or chooses an alterna-

tive not provided by the Service based on its own analysis,

then the validity of the Federal agency’ “no jeopardy”

finding will decide whether section 7(a)(2) has been

satisfied and whether section 7(d) no longer applies. If it is

later determined that the finding is not valid, the Federal

agency would be taking the risk of noncompliance with the

Act.

App. 379

Finally, one commenter asked that this section be

amended to require Federal agencies to give written notice

to the Service verifying that neither it nor any applicant

involved has made any irreversible or irretrievable com-

mitment of resources during consultation. The Act does

not provide such authority, except arguably in the exemp-

tion process. A mandatory section 7(d) notice has not been

adopted in this final rule regarding consultation proce-

dures because section 7(d) is strictly prohibitory in nature

and not consultative.

Subpart B - Consultation Procedures

There are five primary components within the section

7 consultation procedures — conference, early consultation,

biological assessment, informal consultation, and formal

consultation. Of these, only conference, formal consulta-

tion, and biological assessments may be required. Al-

though a Federal agency may elect to use several of these

procedures, they do not represent a mandatory, sequential

process. As requested by one commenter, the following is a

brief abstract of each component of the consultation

process.

If a Federal agency determines that its action is likely

to jeopardize the continued existence of any proposed

species or result in the destruction or adverse modification

of proposed critical habitat, the Federal agency is required

to “confer” with the Service under § 402.10. The purpose of

a conference is to identify and resolve potential conflicts

between an action and proposed species or critical habitat.

The Service will make advisory recommendations on ways

to minimize or avoid adverse effects. If the proposed

species or proposed critical habitat is subsequently listed

App. 380

or designated, respectively, then the Federal agency must

consider whether formal consultation under § 402.14 is

required.

“Early consultation” is an optional process that may

be requested through the Federal agency by a prospective

applicant to determine whether its proposed action is

likely to jeopardize the continued existence of a listed

species or result in the destruction or adverse modification

of critical habitat. Early-consultation occurs prior to a

formal application for a Federal permit or license. Such

early consultation is conducted between the Service and

the Federal agency in cooperation with the prospective

applicant. At the request of the prospective applicant,

early consultation is initiated by the Federal agency

responsible for issuing the permit or license and is gener-

ally conducted and concluded in the manner prescribed for

“formal consultation.” If the action is a “major construction

activity,” the biological assessment requirement of

§ 402.12 must be satisfied before early consultation is

initiated. After concluding early consultation, the Service

will deliver its preliminary biological opinion to the Fed-

eral agency and the prospective applicant.

After formal application is made for the permit or

license but before its issuance, the Federal agency should

submit to the Service a written request that the prelimi-

nary biological opinion be confirmed as a final biological

opinion under section 7(a)(2). If-the Service determines

that no significant changes have occurred in either the

proposed action or the information available since early

consultation, no new impacts are anticipated, and no new

species have been listed or critical habitat designated

since early consultation, it will confirm that the prelimi-

nary biological opinion remains accurate and shall be

App. 381

treated as a final biological opinion issued under section

7(b) of the Act. Consultation will terminate in accordance

with § 402.14(1). However, if the Service is unable to

confirm the preliminary biological opinion due to any of

the reasons outlined in § 402.11, formal consultation on

that action must be initiated under § 402.14.

“Biological assessment” requirements apply to all major

construction activities as defined in these regulations. Even

if not required, Federal agencies may voluntarily prepare a

biological assessment to assist them in fulfilling their

section 7 responsibilities. Also, any person who wishes to

apply for an exemption may voluntarily prepare such an

assessment in cooperation with the Service and under the

supervision of the appropriate Federal agency.

A biological assessment contains information concern-

ing listed or proposed species or designated or proposed

critical habitat that may be present in the action area and

an evaluation of any potential effects of the action on such

species and habitat. A biological assessment should be

used in determining whether formal consultation or a

conference is required.

“Informal consultation” includes all the contacts

(discussions, correspondence, etc.) between the Federal

agency or its designated non-Federal representative and

the Service that take place prior to the initiation of any

necessary formal consultation. Informal consultation may

be used by the Federal agency in determining whether

formal consultation under § 402.14 or a conference under

§ 402.10 is required.

“Formal consultation” is required under section 7(a)(2)

of the Act. A Federal agency must initiate formal consulta-

tion if it determines that its action “may affect” any listed

App. 382

species or its critica] habitat unless it determines through

informal consultation or biological assessment procedures,

with the written concurrence of the Service, that its action

“is not likely to adversely affect” such species or habitat. If

the action is a “major construction activity,” the biological

assessment requirement must be satisfied before formal

consultation may begin. Formal! consultation is concluded

within 90 days or extended in accordance with the provi-

sions of § 402.14. Within 45 days after concluding formal

consultation, the Service will deliver its biological opinion

stating whether or not the action is likely to jeopardize the

continued existence of listed species or result in the

destruction or adverse modification of critical habitat. If

formal consultation results in a “jeopardy” biological

opinion, reasonable and prudent alternatives, if any, will

be included in the opinion.

These procedures are discussed more fully below,

together with the sections governing post-consultation

responsibilities of Federal agencies and the factors that

require reinitiation of formal consultation. Specific public

comments are treated on a section-by-section basis.

Section 402.10 Conference on Proposed Species or Proposed

Critical Habitat.

The 1979 Amendments added the requirement in

section 7(a)(4) that Federal agencies confer with the

Service on any Federal action that is likely to jeopardize

the continued existence of any proposed species or result

in the destruction or adverse modification of proposed

critical habitat. The purpose of this requirement is to

identify and resolve potential conflicts between an action

and proposed species or proposed critical habitat at an

App. 383

early point in the decisionmaking process. Conferences

will be conducted on an informal basis between the Fed-

eral agency and the Service. The Service will make rec-

ommendations, if any, to minimize or avoid adverse effects

of the action on proposed species or proposed critical

habitat. These recommendations are advisory in nature,

because the “jeopardy” prohibition of section 7(a)(2) does

not apply until the species is listed or the critical habitat is

designated. However, the Federal agency and any appli-

cant should give serious consideration to implementing the

recommendations since, if the species is later listed or

critical habitat designated, the Federal agency must

review its action, regardless of its stage of completion, to

determine whether consultation is required. In certain

instances the Federal agency and the Service may conduct

the conference in such a thorough manner that it would

satisfy the consultation requirements of section 7(a)(2) if

the proposed listing or designation is subsequently com-

pleted.

The conference procedures are not repetitive of work

performed in the preparation of a biological assessment, as

suggested by three commenters. First, the conference

requirement applies to all Federal actions, while the

biological assessment requirement only applies to actions

that are “major construction activities.” Second, the

conference requirement applies to proposed species and

proposed critical habitat, whereas biological assessments

are required only when listed species or critical habitat

may be present in the action area (although proposed

species or proposed critical habitat should be covered in

the assessment if they also may be present in the action

area). Thus, the conference process fills the need to alert

Federal agencies of possible steps that the agency might

App. 384

take at an early stage to adjust their actions to avoid

jeopardizing a proposed species. The Service strongly

encourages the implementation of the recommendations so

the action would not violate section 7(a)(2) if the species is

listed or the critical habitat designated.

After reviewing a biological assessment or other

available information, the Service may determine that a

conference is required for the proposed species or proposed

critical habitat. A sentence has been added to the new

paragraph (b) of § 402.10 [proposed § 402.13(a)| to point

out the Service’s responsibility to request a Federal agency

to confer after a review of available information. The last

sentence of the proposed paragraph (a) has been deleted

since the new § 402.08 clearly defines the role of the

designated non-Federal representative. The Service

declines to take the position that it can “require” the

initiation of a conference, because the Federal agency

bears the ultimate responsibility to assess the likelihood of

jeopardy to proposed species by its actions. However, the

Service will vigilantly review biological assessments and

other available information and fulfill its duty to make

Federal agencies aware of their responsibilities under the

Act.

The Service emphasizes the need for Federal agencies

to confer because such efforts may not only minimize or

avoid injury to proposed species but might also prevent the

halting of an action if the species is subsequently listed:

Obviously, Federal agencies irreversibly committing re-

sources and foreclosing alternatives to an action that is likely to

jeopardize a proposed species do so with the risk that the species

will eventually be formally listed and the prohibitions of section

7 will become applicable. The conferees do not believe that any

App. 385

Federal agency or permittee should make any irreversible or

irretrievable commitments of resources for the purpose or with

the intent of foreclosing otherwise reasonable alternatives or in

order to secure an exemption pursuant to section 7(h).

H.R. Conf. Rep. No. 697, 96th Cong., Ist Sess. 13 (1979).

There is no requirement that Federal agencies confer

with the Service on species that are candidates for listing

proposals. However, for the reasons identified by Congress

in the Conference Report to the 1979 Amendments on

proposed species, the Service encourages Federal agencies

to confer informally on candidate species when deemed

appropriate to avoid jeopardy and to avoid potential

economic loss through project modification if the species is

later listed.

Several specific changes were recommended for

proposed paragraph (a) [paragraphs (a) and (b) in the final

rule]. One commenter felt that the reference to “potential

endangered species conflicts” was too restrictive. The

Service agrees that the proposed rule might have been

construed so as to exclude threatened species. Therefore,

the sentence has been adjusted to refer to all potential

conflicts.

One commenter urged the Service to change the

standard for initiating a section 7(a)(4) conference from

“likely to jeopardize” to “would adversely affect.” The

regulation tracks the statute. The Service lacks the au-

thority to make the requested change.

Several commenters urged the Service to make

provisions for applicant involvement in the conference

process. The Service agrees, and has added language in

App. 386

paragraphs (a), (c), and (e) of § 402.10 to ensure that

applicants have an opportunity to participate in the

conference, and that they receive a copy of the conclusions

documented by the Service.

Another commenter asked that time limits be estab-

lished for the conference process. The Service declines to

establish time limits for the conference requirement. The

timing of the section 7(a)(4) process is, in part, dictated by

the progress of the proposed rulemaking to list a species or

to designate critical habitat. Regardless of any time limits

that the Service could establish, the conference require-

ment expires and consultation is required if the listing or

critical habitat designation becomes final. The Service

finds no reason to impose rigid time frames for confer-

ences.

Paragraph (c) defines the nature and content of the

conference. Basically, a “conference” involves informal

discussions on the identification and possible avoidance or

minimization of potential adverse effects to proposed

species or proposed critical habitat from a Federal action.

The reference to “informal discussions” should not be

confused with “informal consultation,” which is a distinct,

but optional, component of consultation.

The Service declines to modify paragraph (c) by

changing “advisory” recommendations to “conservation”

recommendations, as suggested. Such a change may

confuse conference with formal consultation, the required

procedure in which discretionary “conservation recom-

mendations” may be given. The Service also declines to

adopt suggested provisions that would (1) require advisory

recommendations to be made in every conference, (2) force

the Service to notify the Federal agency of the date on

App. 387

which a final decision will be made on a listing proposal,

or (3) require the Service to initiate emergency rulemaking

proceedings to list a species or designate critical habitat if

the Federal action is likely to jeopardize the species.

Although required, conference is an informal process that

has no substantive force. To force every conference into a

regimented structure would be counterproductive and

contrary to the intent of the Act. When appropriate, the

Service will make advisory recommendations on ways to

avoid or minimize adverse effects to proposed species or

proposed critical habitat. During the conference, the

Service will apprise the Federal agency of the progress of

the listing or critical habitat proposal and will attempt to

notify the Federal agency when the listing or critical

habitat proposal becomes final. Emergency rulemaking is

provided for under section 4(b)(7) of the Act and will be

used if appropriate under the circumstances.

One commenter suggested that the conference involve

all of the steps of formal consultation, but on an informal

basis so that if the listing becomes final, the conclusions

and recommendations derived from the conference could

be adopted as a final biological opinion. In some cases, a

thorough, well-prepared conference might elucidate

sufficient conclusions and recommendations to serve as

the biological opinion, upon the final listing of a species.

While section 7(a)(4) does not require Federal agencies to

follow the section 7(a)(2) process for proposed species or

proposed critical habitat, or specifically provide for the

conversion of conference “conclusions and recommendations”

into a final biological opinion [in contrast to explicit authority

under section 7(bX3)(B) for the conversion of preliminary

biological opinions into final biological opinions], such a

App. 388

procedure is available to the Federal agency and the

Service in appropriate instances.

If the information necessary to conduct a formal

consultation is available at the conference stage, and if a

formal procedure is deemed appropriate by both the

Federal agency and the Service, the conference may be

conducted through a procedure equivalent to formal

consultation; the results, or opinion, derived from a “for-

mal” conference may be adopted as the biological opinion

when the proposed listing or designation is completed. It

should be noted that the conference conclusions and

recommendations would only be adopted as the biological

opinion in those instances where no new data are devel-

oped, including that developed during the rulemaking

process on the proposed listing or designation of critical

habitat, and no changes to the Federal action are made

which would alter the content of that opinion. By provid-

ing procedures which allow for a more extensive confer-

ence that may later be adopted as the biological opinion,

the Service does not intend to expand upon the require-

ments of section 7(a)4). Rather, this procedure is an

option available to the Federal agency and the Service to

help avoid conflicts and expedite consultation if the

proposed species or critical habitat is listed or designated.

Therefore, a new paragraph (d) is added to this final rule

to acknowledge the availability of a “formal” conference

procedure.

Paragraph (e) of § 402.10 discusses the documentation

of the results of the conference. If the action involves only

proposed species or proposed critical habitat, a copy of the

recommendations will be forwarded by the Service to the

Federal agency and any applicant. If an action also in-

volves formal consultation on listed species or critical

App. 389

habitat, the Service will provide the recommendations on

proposed species or proposed critical habitat with the

biological opinion. As requested by some commenters, the

final rule has been clarified to state that the conclusions of

a conference will be provided with the biological opinion

rather than made an integral part of (“consolidated in”)

the opinion. The Service does not intend that the informal

nature of the conference be changed or that any of the

requirements of formal consultation under section 7 be

imposed on Federal agencies with respect to proposed

species or proposed critical habitats unless the Federal

agency specifically requests a more formal procedure.

Early initiation of these discussions increases the chances

of resolution of potential conflicts.

Section 402.11 Early Consultation.

The 1982 Amendments added a provision to the

consultation process [section 7(a)(3)] designed to identify

and to minimize, early in the planning stage of an action,

potential conflicts between the action and listed species.

These early consultation provisions authorize the Service

to consult with Federal agencies at the request of and in

cooperation with prospective applicants regarding the

impact of proposed actions on listed species or critical

habitat. These provisions are incorporated into the final

regulations in § 402.11 (§ 402.14 of the proposed rule). The

intent of this provision is to involve the Service and State

and local planning and conservation entities in the plan-

ning stages of actions. The Service believes that early

consultation will be helpful in establishing a mechanism

for early resolution of potential conflicts. Congress did not

intend that this provision be used to authorize consulta-

tion for speculative or remote actions but rather only on

App. 390

actions which are likely to occur. The regulations require

prospective applicants to provide sufficient information

describing the project, its location, the scope of activities

associated with it, and the anticipated impacts to listed

species to enable the Federal agency and the Service to

conduct meaningful early consultations.

The opportunity for an early consultation should

expedite the permitting and other regulatory processes

associated with actions requiring Federal authorizations.

Contrary to the interpretation of one commenter, early

consultation is not a required process, but rather is an

optional step that a prospective applicant can take to

factor in section 7 considerations during the initial plan-

ning stage. Although early consultation contains most of

the features of formal consultation, the Service declines to

adopt the suggestion to place the early consultation

provisions within the formal consultation section as a

“special case.” Early consultation, unlike formal, is not

required and occurs before any application for a permit or

license is filed, whereas formal consultation is a post-

application process when applicants are involved. These

differences are significant and merit the separation of

these distinct processes into separate sections. However,

because of the extensive similarities in the procedures for

early and formal consultation, the final rule has been

substantially modified in format to reference appropriate

paragraphs in § 402.14 (formal consultation) to avoid

repetition of these commom features. Although this has

greatly shortened the early consultation section, the

requirements and procedures have not been altered

substantively.

One commenter was confused over the parameters of

early consultation and informal consultation (§ 402.13).

App. 391

Informal consultation is a post-application process, as is

formal consultation; early consultation is a pre-application

process. There is no overlap. Designated non-Federal

representatives can carry out informal consultation, and

they can also carry out the biological assessment process if

an assessment is required during the early consultation.

Although only Federal agencies conduct early consultation

directly with the Service, non-Federal representatives may

continue to play a role in the data-gathering function of

consultation.

Several commenters believed that proposed § 402.14

took away the prospective applicant’s right to request

early consultation and to make the initial determination of

possible impacts to listed species or critical habitat. The

proposed rule preserved the prospective applicant’s right

to request early consultation but provided the Federal

agency with the responsibility for determining impacts to

listed species or critical habitat. In response to comments,

the final rule has been rearranged to clarify the primary

role of the applicant in making the initial determination

and request to the Federal agency. However, the appli-

cant’s rights under section 7(a)(3) of the Act are not un-

qualified, and the ultimate burden is on the applicant to

meet certain threshold criteria.

Paragraph (a) of § 402.11 outlines the purpose of early

consultation and is adopted substantially as proposed in

§ 402.14(b) and the first sentence of § 402.14(c). The legisla-

tive history is clear that the prospective applicant must be

involved to the greatest extent practicable in every aspect of

the early consultation process. H.R. Conf. Rep. No. 835, 97th

Cong., 2d Sess. 26 (1982). One commenter expressed concern

that it may not be possible to have the applicant involved in

every meeting and telephone call between the Federal

App. 392

agency and the Service. Therefore, acknowledging the

practical limitations: on involving the applicant in all

consultation contacts (but still recognizing the need for

continuous communication with the applicant), the second

sentence of paragraph (a) now reads that the prospective

applicant should be involved “throughout” (instead of “in

every aspect of”) the consultation process.

Paragraph (b) of § 402.11 sets out the threshold

conditions that must be satisfied before early consultation

can be initiated and is derived from proposed § 402.14(c).

As suggested by one commenter, the prospective appli-

cant’s request for early consultation should be made in

writing to the Federal agency.

The “may adversely affect” threshold for initiating

early consultation has been expanded to “may affect.” This

action was taken because the more restrictive standard

unnecessarily limited access to this early review proce-

dure, especially since at the early planning stage of an

action the exact nature of a possible effect could be diffi-

cult to define.

Section 402.14(c) of the proposal established that the

Federal agency ensure that the following conditions be

met prior to initiation of early consultation:

(1) there must be a definitive proposal outlining the action

and its effect; :

(2) it must be shown that the action is technologically,

administratively, and legally feasible;

(3) it must be shown that the applicant possesses adequate

economic resources to conduct the action; and

App. 393

(4) it must be shown that the applicant possesses some

property interest in the proposed site on which the action will

occur.

Numerous comments were received on these criteria.

Three commenters urged the Service to strike all four

conditions because of their unreasonableness and the

Service’s lack of authority to impose them on applicants.

Other commenters criticized conditions (2) and (3) due to

their ambiguity. Contending that enforcement of these

conditions would preclude early consultation in many

cases, the commenters noted that the information needed

to meet these conditions is not available at the time that

early consultation is most useful. The commenters also

attacked condition (4), regarding the need to show an

ownership interest in land, because early consultation

would normally occur prior to the selection of an exact

location for the project. Two commenters stated that

conditions (1) and (2) are adequate for screening serious

actions. One commenter suggested that only two criteria

be addressed in determining eligibility for early consulta-

tion: scope of the project, and possible effects on listed

species.

The Service was given explicit authority in section

7(aX(3) of the Act to issue guidelines that would prevent

speculative or undefined actions from triggering early

consultation.

The Committee expects that the Secretary will exclude from

such early consultation those actions which are remote or

speculative in nature and to include only those actions which the

applicant can demonstrate are likely to occur. ... The Commit-

tee further expects that the guidelines will require the prospec-

tive applicant to provide sufficient information describing the

App. 394

project, its location, and the scope of activities associated with it

to enable the Secretary to,carry out a meaningful consultation.

H.R. Rep. No. 567, 97th Cong., 2d Sess. 25 (1982).

The final rule retains proposed condition (1) that

requires the nature and effect of a prospective action to be

defined. Without adequate information, early consultation

would be meaningless. Proposed condition (2) has been

modified in the final rule to require that the prospective

applicant certify that it intends to implement its proposal,

if authorized. This will prevent highly speculative actions

from entering early consultation. The Service believes that

these two conditions are reasonable and will allow Federal

agencies and the Service to focus their attention on con-

crete, feasible actions through meaningful, early consulta-

tions.

Proposed conditions (3) and (4) described above have

been deleted. The Service agrees that these conditions

went beyond the normal pre-application information-

gathering practices of Federal agencies and that they

might have discouraged early consultations unnecessarily.

Paragraph (c) of § 402.11 is adopted from proposed

§ 402.14(a) and the introductory paragraph of proposed

§ 402.14(d). This paragraph governs initiation of early

consultation by the Federal agency if the prospective

applicant complies with paragraph (b).

Paragraph (d) of § 402.11 governs the procedures for

conducting early consultation. To eliminate unnecessary

regulatory language, this paragraph cross-references the

items in § 402.14(c)-(j), since the general consultation

requirements are the same as for formal consultation. The

App. 395

proposed rule repeated these requirements in § 402.14 (d)

through (i).

One commenter argued that the Service exceeded its

authority in proposed paragraph (d)(3) by telling Federal

agencies how to meet their responsibilities by requiring

Federal agencies to involve the applicant in the data-

gathering function. Although this is not included in the

final rule, the Federal agency has an underlying responsi-

bility to involve the applicant in every aspect of the early

consultation to the extent possible. Moreover, the appli-

cant may be the primary source of data used in the consul-

tation.

If the action is a major construction activity, then a

biological assessment must be prepared in accordance with

§ 402.12 before the request for early consultation is sub-

mitted, as is required for formal consultation. This is a

change from proposed § 402.12(b)(10), which made the

biological assessment optional during early consultation.

The Service agrees with the comment that, for major

construction activities, a meaningful early consultation

must include the preparation of a biological assessment

because the preliminary biological opinion issued after

early consultation may be confirmed as the final biological

opinion. Therefore, if early consultation is requested for a

major construction activity, the Federal agency must

complete a biological assessment under § 402.12 prior to

submitting its request for early consultation.

The time limits and extension provisions for formal

consultation are incorporated by reference as the require-

ments for early consultation. Several commenters felt that

the “mutually agreed upon” language of the proposal

[§ 402.14(e)] was too loose and that definitive time limits

App. 396

were needed. The Service agrees and has adopted the time

limits for formal consultation to apply to early consulta-

tion as well. The Service notes that, for major construction

activities, the time period will not begin to run until the

biological assessment under § 402.12 is completed. Be-

cause time deadlines have been adopted, there is no need

to require a written notice that consultation has been

concluded, as requested by one commenter.

Proposed § 402.14(i) concerned requests by the Service

for additional data, and did not require the addition of a

written notice procedure for obtaining an extension. This

is now required, as requested by one commenter, by

incorporating the formal consultation requirements.

Proposed § 402.14(f) recognized that the Service's

responsibilities during early consultation are the same as

those that exist during formal consultation. The final rule

retains this provision by reference. The Service is opposed

to limiting the scope of its analysis of impacts during early

consultation, and it is also opposed to limiting the free

flow of communication among it, the Federal agency, and

the applicant. Therefore, the comment suggesting that

draft preliminary biological opinions not be released to the

Federal agency or the prospective applicant is rejected.

This is not an issue that can be dealt with on an ad hoc

basis, depending on the program experience with particu-

lar agencies or regions. The policy behind early consulta-

tion is clear: full involvement of all parties, including the

prospective applicant, to identify and eliminate conflicts at

the earliest possible stage of a project.

Paragraph (e) of § 402.11 provides that the contents and

conclusions of a preliminary biological opinion are the same

as for a biological opinion issued after formal consultation in

App. 397

§ 402.14(i). One commenter stated that biological opinions

need only be issued after formal consultation under

section 7(a)(2) of the Act and that this should be clarified

in the rule. The Service disagrees because a “written

statement” containing the Secretary’s opinion is required

to be given after the conclusion of both early and formal

consultation. However, there is an important difference in

these two types of opinions: the former has no independ-

ent, operative significance, while the latter states the

Service's “final” judgment on the impacts of an action. The

preliminary biological opinion, issued after the conclusion

of early consultation, has no operative force until it is later

confirmed by the Service under section 7(b)(3)(B) of the

Act, just before the action is to be taken.

One commenter said that it is inappropriate to include

an incidental take statement with a preliminary biological

opinion. The Service believes that input on incidental take

is essential to adequately assist the applicant in planning

its action. It would be unfair to force the applicant to wait

until the time for confirmation of the preliminary biologi-

cal opinion to receive its first notice on the terms and

conditions that must be complied with and the amount

and extent of permissible incidental take. No harm results

to the species by providing this statement in the prelimi-

nary biological opinion because, as stated in the rule, it

does not constitute a permit to take. The “taking” exemp-

tion under section 7(0)(2) does not occur until the prelimi-

nary biological opinion is later confirmed as a final opinion

under § 402.11(f).

Paragraph (f) of § 402.11 is adopted from proposed

§§ 402.15(b) and 402.18(a). This paragraph acknowledges

that, if certain findings are made by the Service, a pre-

liminary biological opinion may be confirmed as a final

App. 398

biological opinion after formal application for a Federal

license or permit is made. The rule requires the Service to

make its decision on confirmation within 45 days after

receipt of the Federal agency’s request. As requested by

one commenter, both the request and the Service’s re-

sponse must be in writing.

Section 402.12 Biological Assessment.

This section explains the biological assessment re-

quirements under section 7(c) of the Act and the process

that must be followed in its preparation. The requirement

that biological assessments be prepared in advance of

certain consultations under section 7(a)(2) was added by

the 1978 Amendments. Although the Service has, as a

matter of agency practice, been requiring the preparation

of biological assessments in appropriate cases under the

authority of section 7(c), this final rule consolidates all

regulatory requirements pertaining to biological assess-

ments.

The proposed rule addressed the biological assessment

provisions in §§ 402.01(c) and 402.12(b). In response to

public comments, the Service has merged these sections in

the final rule into § 402.12. The new format clarifies the

requirements and procedures for preparing biological

assessments. Although the organization of these provi-

sions has been changed substantially, the substance of the

regulation is, except for minor amendments, the same as

that presented in the proposed rule.

The informal consultation and biological assessment

processes were both presented in § 402.12 of the proposed

rule. This confused several commenters who believed that

biological assessments could only be performed in conjunction

App. 399

with informal consultations. To eliminate this confusion,

the biological assessment provisions are placed in a

separate section, immediately before informal consulta-

tion. Although a Federal agency may prepare a biological

assessment while involved in informal consultation with

the Service, there is no requirement that it do so.

References to conference, early consultation, and

formal consultation in proposed § 402.12 (b)(7) (third

through fifth sentences) and (b)(10) have been deleted

because cross-references to the biological assessment

requirement have been inserted in §§ 402.10, 402.11, and

402.14 to explain the interrelationship of these processes.

The purpose of a “biological assessment,” as stated in

§ 402.12(a), is to evaluate the potential effects of the action

on listed or proposed species or designated or proposed

critical habitat and determine whether any such species

and habitat are likely to be adversely affected by the

action. Biological assessments are designed to assist

Federal agencies in “determining whether section 7(a)(2)

consultation should be initiated by identifying endangered

or threatened species that may be present in the area

affected by their proposed project and by identifying the

impacts of those projects on such species.” H.R. Rep. No.

697, 96th Cong., 1st Sess. 14 (1979). Such assessments are

designed to promote the “early discovery of and elucida-

tion” of potential endangered and threatened species

conflicts with proposed agency actions. These reviews

should take place well before the agency exercises its

discretion to authorize, fund, or carry out an action. H.R.

Rep. No. 1625, 95th Cong., 2d Sess. 20 (1978).

One commenter asked that a reference be inserted for

preparation of “preliminary biological assessments.” The

App. 400

Service does not require advance review of draft biological

assessments; the requested procedure would add to statu-

tory requirements. Therefore, the addition has not been

made.

Section 402.12(b)\(1) of the final rule acknowledges

that the Act exempts from the biological assessment

requirement those actions for which contracts were let or

construction was started on or before the effective date of

the 1978 Amendments. One commenter argued that the

assessment requirement must not be retroactive, but

should apply only to current actions as of the issuance of

the final rule. The Service must follow the Act on this

point and adopt the rule as proposed. This will not operate

to the disadvantage of any Federal agency involved in a

section 7 consultation, because the Service has beer

requiring the preparation of biological assessments since

the effective date of the 1978 Amendments.

Section 402.12(b\1) also recognizes that virtually any

Federal agency, State or local agency, private organization,

or individual (potential exemption applicants) may volun-

tarily prepare a biological assessment consistent with the

procedures set forth in this section to assist it in fulfilling

its section 7 responsibilities. One commenter urged the

Service to delete the sentence referring to voluntary

preparation of assessments in proposed § 402.12(b)(1)

because consultation is terminated if a biological assess-

ment is not required. The commenter’s statement is only

true for an action if no listed species or critical habitat are

present in the proposed action area. The placement of that

sentence in the proposed rule was confusing, and thus the

final rule has been clarified. The Service would like to

- make it clear, however, that whether a biological assess-

ment is required or voluntary bears no relation to whether

App. 401

a conference or formal consultation is required under

§§ 402.10 or 402.14, respectively. The assessment is a tool

~ used to identify impacts to species or habitat so that a

decision can be made as to whether a proposed action is

likely to adversely affect listed species or critical habitat.

The biological assessment can be used to determine

whether a conference or formal consultation is required.

The Act provides that any person who may wish to

apply for an exemption from the requirements of section

7(aX(2) may voluntarily conduct such an assessment, in

cooperation with the Service and under the supervision of

the appropriate Federal agency. These potential exemption

applicants must follow the procedures described in

§ 402.12. Under section 7(h\(2), an exemption is not

permanent unless a biological assessment has been pre-

pared. A permanent exemption remains in force for a

particular Federal action regardless of the listing of

additional species in the action area, whereas an ordinary

exemption is limited to the species involved in the section

7 consultation. Paragraph (b)(1) acknowledges these

statutory provisions.

Therefore, the Service retains the flexibility inherent

in paragraph (b)(1) that allows for the preparation of

biological assessments in those instances where they are

not specifically required by this rule. Although requested

by another commenter, the Service declines to set guide-

lines for the exercise of discretion by other Federal agen-

cies or applicants on the decision to voluntarily prepare

assessments.

Paragraph (b)(2) has been added in response to public

comments. The limitation in section 7(c)(1) of the Act on

entering contracts or starting construction on an action

App. 402

while the preparation of a biological assessment is pending

has been included in these regulations. This construction

restriction applies to all actions involving the preparation

of a biological assessment.

The fact that a biological assessment is not required

for all actions does not mean that listed or proposed

species or designated or proposed critical habitat receive

less protection. Federal agencies still have an obligation to

review all of their actions to determine whether formal

consultation under § 402.14 is required. In addition,

Federal agencies must confer on actions that are likely to

jeopardize the continued existence of proposed species or

result in the destruction or adverse modification of pro-

posed critical habitat.

One commenter asked that Federal agencies be

required to document any finding of “no effect” on listed

species or critical habitat for actions not involving the

preparation of a biological assessment. The Service has no

authority to impose such a requirement, but does encour-

age Federal agencies to use their NEPA documentation to

illustrate their analysis of Endangered Species Act issues.

The Service reserves the right to request that an

agency prepare a biological assessment. One commenter

questioned the right of the Service to request assessments

when such are not otherwise required by the Act. Another

commenter feared that the Service would routinely re-

quest field studies with many of the characteristics of

biological assessments, regardless of the action’s potential

effects, the acceptability of a general field reconnaissance,

or the obligation of the Service to provide guidance and

data. The Service’s request for a biological assessment or

App. 403

for field studies is not of mandatory effect; a Federal

agency may reject any such request. The Service recog-

nizes that consultation involves a two-way flow of informa-

tion. It will always strive to provide data that are

available and to assist in designing or in conducting

studies (within budgetary constraints and available

staffing) or in gathering data through consultation.

Paragraph (c) of § 402.12 covers the request by a

Federal agency for a species list from the Service. This

paragraph was adopted from § 402.12(b)(1) (first sentence)

of the proposed rule. Paragraph (d) of § 402.12 involves the

Director’s issuance of a species list. This paragraph was

adopted from § 402.12(b)(2) of the proposed rule.

The biological assessment process begins when a

Federal agency decides that its action is a major construc-

tion activity, as discussed in these regulations, or it de-

cides that it will voluntarily prepare a_ biological

assessment. The Federal agency or the designated non-

Federal representative requests information on whether

listed or proposed species or designated or proposed

critical habitat may be present in the action area. Within

30 days of receipt of that inquiry, the Director will respond

with a list of any such species and critical habitat that

may be present, as well as the available data (or refer-

ences thereto). This may include recommendations for

studies or surveys that may assist in the preparation of

the biological assessment.

Contrary to the contentions of several commenters,

the request for a species list is mandatory under section

7(c) for any major construction activity, unless the Federal

agency forwards its own list for the Director’s concurrence

as explained below. This is not a burdensome requirement,

App. 404

even for apparent “no effect” actions, since the entire

process, including the Director’s response that no listed

species or critical habitat occurs in the action area, may be

carried out without delay through the NEPA process.

In response to comments, the final regulations explic-

itly allow the Federal agency or the designated non-

Federal representative to proceed with the preparation of

the biological assessment prior to receiving a species list

from the Service. In this situation, the Federal agency or

the designated non-Federal representative is required to

notify the Director in writing as to the species and critical

habitat that are being included in the assessment. As

recommended by three commenters, the Service will

respond to this notificatien in writing within 30 days as to

whether it concurs with the species and critical habitat to

be covered in the biological assessment.

One commenter suggested that an applicant should

have an opportunity to informally request a species list to

assist it during the planning stage of a project. Then, if the

applicant begins preparation of a biological assessment

within 90 days of receipt of this “informal” list, the com-

menter thought that the Service should not amend the list

at a later time. The commenter appears to be advocating

an opportunity for early consultation, which is provided

for under § 402.11 of this final rule.

Nevertheless, the request that a species list not be

modified once issued might backfire on the applicant,

because § 402.14 requires consultation on all listed species

and critical habitat that may be affected by a Federal

action. Even if a species is inadvertently omitted from the

species list and biological assessment, the Act nevertheless

requires that it must be considered in satisfying the

App. 405

requirements of section 7(a)(2). Thus, the sooner the

Service notifies the applicant of additional species to be

included in a required biological assessment, the sooner

the consultation will be completed.

In addition to listed or proposed species or designated

or proposed critical habitat, the Service will include

candidate species in the species list. Candidate species are

those species being considered for listing but not yet the

subject of a proposed rule. This will inform the Federal

agency and any applicant of potential proposals for listing.

Candidate species have no legal status and are accorded

no legal protection under the Act, and thus the Federal

agency need not include them in a biological assessment.

However, should a candidate species become proposed or

listed prior to completion of the action, a conference or

formal consultation may be required.

Several commenters asked that species lists be “site-

specific” and not regional in scope. One of these comment-

ers urged the Service to include only species actually

known or believed to occur in the action area. The Service

agrees that the species list should be tailored to the action

area and that field personnel should take care that the list

is not overinclusive. However, the Act requires the Service

to provide a list of all listed or proposed species that “may

be present” in the action area. Thus, migratory species

that “may be present” at some point within the action area

must be included in the species list.

Another commenter said that the Service should

include only species in the list that it believes may be

affected by the action. This approach is not consistent with

section 7(c), which requires a disclosure of all species that

“may be present” in the action area. The comment would

~App. 406

also eliminate the Federal agency’s right to make an

initial evaluation of possible effects to each species.

One commeénter’s conclusion that a determination of

no adverse effect after receipt of the species list, but before

preparation of the assessment, eliminates the need to

prepare the assessment and concludes consultation is

erroneous. The biological assessment is used to determine

whether an activity “is likely to adversely affect” listed

species or critical habitat. Consultation does not conclude

unless the Service concurs in writing with the finding of

the biological assessment indicating that the action is not

likely to adversely affect listed species or critical habitat.

The Service has clarified paragraph (d)(1) to accom-

modate the concern of the House Committee that biologi-

cal assessments not be required on major construction

activities affecting proposed species or proposed critical

habitat only. However, if a species list includes both listed

and proposed species, each must be considered in the

biological assessment as required by section 7(c) of the Act.

Concerned that the Federal agency should receive all

information during the assessment process, one com-

menter asked that the species list be delivered to both the

Federal agency and its designated non-Federal represen-

tative due to the agency’s responsibility to supervise the

preparation of the assessment. The Service declines to

include this requirement in the rule, but will forward a

copy to the Federal agency, if requested. It is the Federal

agency's responsibility to decide whether it wants to

designate a non-Federal representative, and if one is

designated, the species list will be sent to the representa-

tive as requested by the Federal agency.

App. 407

Several commenters suggested that the Service's

ability to recommend “necessary” studies or surveys would

contravene the “best available scientific and commercial

data” standard of section 7(a)(2). The Service agrees that

the proposed language may have implied that additional

studies or surveys were required or necessary to complete

the assessment. Therefore, the sentence is changed to

state that the Service may recommend

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