# Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-06902

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 5, 2024
- **Citation:** 89 FR 24268

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. FWS-HQ-ES-2021-0104; FXES1114090FEDR-245-FF09E300000; Docket No. NMFS-240325-0087]
RIN 1018-BF96; 0648-BK48
Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation

AGENCY:

U.S. Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

FWS and NMFS (collectively referred to as the “Services” or “we”) finalize revisions to portions of our regulations that implement section 7 of the Endangered Species Act of 1973, as amended (“Act”). The revisions to the regulations clarify, interpret, and implement portions of the Act concerning the interagency cooperation procedures.

DATES:

This final rule is effective May 6, 2024.

ADDRESSES:

Public comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available online at
https://www.regulations.gov
at Docket No. FWS-HQ-ES-2021-0104.

FOR FURTHER INFORMATION CONTACT:

Craig Aubrey, Ecological Services, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703/358-2442; or Tanya Dobrzynski, Chief, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301/427-8400. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing most of the provisions of the Endangered Species Act, as amended (hereafter referred to as “ESA” or “the Act;” 16 U.S.C. 1531
et seq.
), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated procedural regulations governing interagency cooperation under section 7 of the Act, which requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to ensure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. These joint regulations, which are codified in the Code of Federal Regulations at 50 CFR part 402, were most recently revised in 2019 (84 FR 44976, August 27, 2019; hereafter referred to as “the 2019 rule”). Those revised regulations became effective October 28, 2019 (84 FR 50333, September 25, 2019).

Executive Order 13990 (hereafter, “E.O. 13990”), which was entitled “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” was issued January 20, 2021, and directed all departments and agencies to immediately review agency actions taken between January 20, 2017, and January 20, 2021, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with important national objectives, including promoting and protecting our public health and the environment, and to immediately commence work to confront the climate crisis. A “Fact Sheet” that accompanied E.O. 13990 identified a non-exhaustive list of particular regulations requiring such a review and included the 2019 rule (see
www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/
). In response to E.O. 13990 and in light of litigation over the 2019 rule, the Services proposed revisions to portions of the ESA implementing regulations at 50 CFR part 402.

On June 22, 2023, we published in the
Federal Register
(88 FR 40753) a proposed rule to amend portions of our regulations that implement section 7 of the Act. We accepted public comments on the June 22, 2023, proposed rule for 60 days, ending August 21, 2023. The proposed rule included clarifying the definitions of “effects of the action,” “environmental baseline,” and “reasonable and prudent measures”; removing § 402.17, “Other provisions,” which had been promulgated with the intent of clarifying several aspects of the process of determining whether an activity or consequence is reasonably certain to occur; clarifying the responsibilities of the Federal agency and the Services regarding the requirement to reinitiate consultation; and revising the regulations at 50 CFR 402.02 and 402.14 regarding the scope of reasonable and prudent measures (RPMs) in an incidental take statement (ITS). The proposed rule also sought comment on all aspects of the 2019 rule, including whether any of those provisions should be rescinded in their entirety (restoring the prior regulatory provision) or revised in a different way. The Services also conducted outreach to Federal and State agencies, industries regularly involved in section 7(a)(2) consultation, Tribes, nongovernmental organizations, and other interested parties and invited their comment on the proposal.

Following consideration of all public comments received in response to our proposed rule, we are proceeding to finalize revisions to our implementing regulations at 50 CFR part 402 as proposed, with no changes. The basis and purpose for this final rule are reflected in our explanation in the June 2023 proposed rule, the responses to comments below, as well as the 2019 final rule for those aspects of the 2019 final rule we are not changing here. These revisions will further improve and clarify interagency consultation. With the exception of the revisions at 50 CFR 402.02 and 402.14 regarding the RPMs in an incidental take statement (ITS), the revisions do not make any changes to existing practice of the Services in implementing section 7(a)(2) of the Act.

In the event any provision is invalidated or held to be impermissible as a result of a legal challenge, the “remainder of the regulations could function sensibly without the stricken provision.”
Belmont Mun. Light Dep't
v.
FERC,
38 F.4th 173, 187 (D.C. Cir. 2022) (quoting
MD/DC/DE Broad. Ass'n
v.
FCC,
236 F.3d 13, 22 (D.C. Cir. 2001)). Because each of the revisions stands on its own, the Services view each revision as operating independently from the other revisions. Should a reviewing court invalidate any particular revision(s) of this rulemaking, the

remaining portions would still allow the Services to issue biological opinions and incidental take statements that comprehensively evaluate the effects of federal actions on listed species and critical habitat and adequately address the impacts of incidental take that are reasonably certain to occur. Specifically, these distinct provisions include: (1) revisions to the definition of “environmental baseline,” (2) removal of section § 402.17 and conforming revisions to the definition of “effects of the action,” (3) revisions to § 402.16, and (4) revisions to the regulatory provisions regarding the scope of reasonable and prudent measures in incidental take statements (§§ 402.02 and 402.14(i)). To illustrate this with one possible example, in the event that a reviewing court were to find the revision adopted in 2019 that described expedited consultations at § 402.14(l) is invalid, that finding would not affect the current revisions to the provisions for reinitiation of consultation at Section § 402.16.

The revisions to the regulations in this final rule are prospective; they are not intended to require that any previous consultations under section 7(a)(2) of the Act be reevaluated at the time this final rule becomes effective (see
DATES
, above).

This rule is one of three rules publishing in today's
Federal Register
that make changes to the regulations that implement the ESA. Two of these final rules, including this one, are joint between the Services, and one final rule is specific to FWS.

Summary of Comments and Responses

In our June 22, 2023, proposed rule (88 FR 40753), we requested public comments by August 21, 2023. We received more than 140,000 comments by that date from individual members of the public, States, Tribes, industry organizations, legal foundations and firms, and environmental organizations. We received several requests for extensions of the public comment period. However, we elected not to extend the public comment period because we found the 60-day comment period provided sufficient time for a thorough review of the proposed revisions. The majority of the proposed revisions are to portions of the regulations that were previously revised in 2019, and we jointly announced in a public press release and on a Service website our intention to revise these regulations in June of 2021. The number of comments received indicated that members of the public were aware of the proposed rule and had adequate time to review it. In addition, we provided six informational sessions for a wide variety of audiences. Over 500 attendees participated in these sessions, and we addressed questions from the participants during each session. Finally, on our website, we provided additional information about the proposed regulations, such as frequently asked questions and a prerecorded presentation on the proposed revisions.

Most of the comments we received were non-substantive, expressing either general support for, or opposition to, the proposed rule with no supporting information or analysis. Other comments expressed opinions beyond the scope of this rulemaking. We do not, however, respond to comments that are beyond the scope of this rulemaking action or that were not related to the 2019 rule. The vast majority of the comments received were nearly identical statements from individuals indicating their general support for the proposed revisions to the 2019 rule and concern for not including more revisions to the 2019 rule, but not containing substantive content. We also received approximately 95 letters with detailed substantive comments with specific rationales for support of or opposition to specific portions of the proposed rule.

Before addressing each of the comments, we reiterate the Services' intention to provide additional guidance in an updated ESA Section 7 Consultation Handbook (Consultation Handbook) that we anticipate making available for public comment after the publication of this final rule. Related to topics addressed in this final rule, the additional guidance will address application of the definition of “effects of the action” and “environmental baseline,” examples for defining when an activity is reasonably certain to occur and guidance on application of the two-part causation test, additional information on consulting programmatically, guidance on implementation of section 7(a)(1) of the Act, and implementation of the expanded scope of RPMs.

Recognizing that the revisions to the regulatory provisions expanding the scope of RPMs represent a change to the Services' practice, we would also like to highlight some of the key aspects of that amendment, which are discussed in more detail in the response to comments below. First, the Services find that the revision allowing for the use of offsets as RPMs will more fully effectuate the conservation goals of the ESA by addressing impacts of incidental take that may not have been sufficiently minimized through measures confined to avoiding or reducing incidental take levels. In that regard, our prior approach, which restricted RPMs to measures that avoid or reduce incidental take, has led to the continued deterioration of the condition of listed species and their critical habitat through the accumulation of impacts from incidental take over time. Further, those impacts from incidental take may have been more adequately addressed through offsetting measures.

Second, as explained in our response to comments below, the respective revisions to § 402.02 and § 402.14(i), which recognize the use of offsets as RPMs, are supported by the plain language of the ESA. The relevant language at ESA section 7(b)(4)(C)(ii) plainly states that RPMs are to include measures that minimize the “impacts” of incidental take, not just incidental take itself. Like measures that avoid or reduce incidental take, offsetting measures also “minimize” the impacts of incidental take on the species. The legislative history of the 1982 amendments of the ESA also confirms that Congress did not intend to preclude the Services from specifying offsets as RPMs that minimize the impacts of incidental take. Lastly, the Services do not expect offsetting measures that occur outside the action area to violate the “minor change rule.” In most instances, offsetting measures operate as additional measures to minimize impacts of incidental take that would not prevent the action subject to consultation from proceeding essentially as proposed. Accordingly, text was added at 50 CFR 402.14(i)(2) to expressly recognize that offsets may occur within or outside the action area, consistent with the “minor change rule” (
i.e.,
the requirement that RPMs specify only minor changes that do not alter the basic design, location, duration, or timing of the action).

In addition, the Services would like to address a particular issue at the outset of this portion of the preamble. Several commenters asserted that a recent decision from the D.C. Circuit Court of Appeals,
Maine Lobstermen's Association
v.
NMFS,
70 F.4th 582 (D.C. Cir. 2023) (“
MLA
”), weighs against the Services removing § 402.17 from the section 7 regulations, especially the “clear and substantial information” standard that applies in determining if a consequence is reasonably certain to occur. We explain here our understanding of the decision and why it does not undermine our regulatory revision to remove § 402.17. Because the subject consultation in the
MLA
litigation required NMFS to grapple with scientific uncertainties, we also offer additional explanation of how the

Services address such uncertainties, in general, consistent with the holding in
MLA
and section 7(a)(2) of the Act. We respond to some of the more specific comments in the responses section below.

In
MLA,
lobster fishermen challenged a NMFS no-jeopardy biological opinion that analyzed the effects of authorizing the Federal lobster and Jonah crab fisheries in the Northeast on the highly endangered North Atlantic right whale. In developing the biological opinion, NMFS faced uncertainties in determining the anticipated level of right whale entanglements and any subsequent deaths the fishery was anticipated to cause over the next 50 years. The D.C. Circuit Court of Appeals found that NMFS impermissibly resolved these uncertainties by asserting the legislative history of the ESA required NMFS to apply worst case scenarios. See 70 F.4th at 597 (“When answering public comments the Service blamed the Congress, insisting that . . . the legislative history required it to deal in worst-case scenarios because `we need to give the benefit of the doubt to the species.' ”). The
MLA
court held that legislative history cannot “compel a presumption in favor of the species not required by the statute” and that, under the ESA, the Services facing scientific uncertainty may not simply resort to “worst-case scenarios or pessimistic assumptions,” but must instead “strive to resolve or characterize the uncertainty through accepted scientific techniques.”
Id.
at 586, 598, 600.

That decision does not address the Services' discretion to resolve ambiguities in the best available scientific data generally, or the Services' decision to remove § 402.17 from the section 7 regulations. First, the court invalidated only the particular way in which NMFS resolved uncertainties in
MLA
—namely that the agency, in the court's view, made a legal determination that it had to give the benefit of the doubt to an endangered species, rather than making a scientific judgment based on the best available scientific data. The court stated, for example, that agencies may not “jump to a substantive presumption [in favor of the endangered species] that distorts the analysis of effects and creates false positives.”
MLA,
70 F.4th at 600. But the court also made clear that when agencies make “a scientifically defensible decision” by, for instance, “striv[ing] to resolve or characterize the uncertainty through accepted scientific techniques,” their “predictions will be entitled to deference.”
Id.
The court further anticipated that NMFS “will be able to make” such scientifically defensible decisions “[i]n most realistic cases” and thereby avoid the specific issues the court found problematic in
MLA. Id.
The Services historically have resolved ambiguities or uncertainties in the data based on such “accepted scientific techniques.” As a result, the Services anticipate that the
MLA
decision will have limited implications for the Services' overall implementation of section 7(a)(2).

Second,
MLA
does not constrain the Services' decision to remove § 402.17, contrary to some commenters' assertions. As discussed more fully below, the Services are removing the “clear and substantial information” requirement because it could be read as inappropriately restricting the scope of “the best available scientific and commercial data” by demanding a degree of certitude and quantification. The best available data are not always free of ambiguities and thus “clear,” nor are they invariably quantifiable or “substantial” in quantity. As the Services explained in the 2019 section 7 final rule: The best scientific and commercial data available is not limited to peer-reviewed, empirical, or quantitative data but may include the knowledge and expertise of Service staff, Federal action agency staff, applicants, and other experts, as appropriate, applied to the questions posed by the section 7(a)(2) analysis when information specific to an action's consequences or specific to species response or extinction risk is unavailable. Methods such as conceptual or quantitative models informed by the best available information and appropriate assumptions may be required to bridge information gaps in order to render the Services' opinion regarding the likelihood of jeopardy or adverse modification. Expert elicitation and structured decision-making approaches are other examples of approaches that may also be appropriate to address information gaps. (84 FR 45000)

MLA
does not require a different view. In interpreting section 7(a) of the ESA, the court held that agencies must use “the best available scientific data, not the most pessimistic.”
MLA,
70 F.4th at 599. The court did not hold that, within the best available scientific data, the statute permits reliance only on clear data that lack uncertainties or a substantial amount of such data. And while the court made a passing reference to § 402.17, it did so to support the proposition that, even under the Services' own “interpretive rules,” NMFS's approach in that case fell short because, in the court's view, it lacked a clear and substantial basis for predicting reasonably certain effects. The court did not indicate the
statute
demands “clear and substantial information.”

That understanding is consistent with the statutory text, which provides that each federal agency shall “
insure
that any action authorized, funded, or carried out by such agency . . . is
not
likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. 1536(a)(2) (emphases added). As the Supreme Court has explained, “insure” in section 7(a)(2) means “[t]o make certain, to secure, to guarantee.”
National Association of Home Builders
v.
Defenders of Wildlife,
551 U.S. 644, 667 (2008) (quotation marks omitted). Thus, agencies do not determine the effects of an action using “the best scientific and commercial data available” in a vacuum. Rather, the ESA envisions that agencies would make any such scientific judgments in service of their overarching responsibility to “make certain” their actions are “not likely” to jeopardize protected species. Accordingly, a regulation that impairs agencies' ability to carry out that duty by requiring them to disregard any reasonably certain effects that have ambiguities in the underlying information or that may be based on less than substantial information could be inconsistent with the statute.

We note that even with the removal of § 402.17, the two-part causation test (
i.e.,
the “but for” and “reasonably certain to occur” standards) for determining whether a particular activity or consequence falls under the definition of “effects of the action” remains in place. As the Services explained in the 2019 rule, the “reasonably certain to occur” standard adds an element of foreseeability and a limitation to our causation standard for determining “effects of the action.” 84 FR at 44991. That standard prevents the Services from engaging in speculative analyses, though it does not require a guarantee that an effect will occur.
See
51 FR 19926 at 19932-19933; June 3, 1986 (1986 section 7 regulations final rule); 80 FR 26832 at 26837; May 11, 2015 (incidental take statement final rule); 83 FR 35178 at 35183; July 25, 2018 (2018 proposed rule to update section 7 regulations). These safeguards ensure that when faced with scientific uncertainties, the Services will not automatically rely on “worst-case scenarios.”
See
84 FR 44967 at 45000; August 27, 2019. Instead, consistent with the statute and our regulations, the Services will continue to evaluate the best available evidence to arrive at principled scientific determinations in rendering our opinion under section 7

of the Act. Similarly, in rendering our opinion and resolving uncertainties, we will continue to be mindful of the fundamental duty—required by the text of section 7(a)(2)—to “insure” the agency action is not likely to jeopardize species protected under the Act.

Below, we summarize and respond to substantive and other relevant comments we received during the public comment period; we combined similar comments where appropriate.

Section 402.02—Definitions

Definition of “Effects of the Action”

As proposed, we are revising the definition of “effects of the action” by adding “but that are not part of the action” to the end of the first sentence and removing the parenthetical reference to § 402.17. The first sentence now reads: Effects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action but that are not part of the action. The Services received a wide variety of comments on our proposed revisions to the definition of “effects of the action.” These comments ranged from support of the proposed revisions, requests to revert to the pre-2019 definition, and recommendations for modifications to the proposed definition, largely to incorporate portions of § 402.17 in the “effects of the action” definition if that section is removed as had been proposed. Commenters in support of the revisions to the 2019 definition generally agreed with the reasoning of the Services but many requested additional guidance on the application of the definition. The Services intend to provide additional guidance in an updated Consultation Handbook, which we anticipate publishing in the
Federal Register
for public comment after issuance of this final rule.

Commenters who requested the Services return to the pre-2019 definition of “effects of the action” generally pointed to the removal of the terms “direct,” “indirect,” interrelated,” and “interdependent” and the use of the terms “consequences” and “other activities,” as well as the two-part causation test as being a change in practice that narrows the scope of the “effects of the action.” The Services respectfully decline to return to the pre-2019 definition of “effects of the action.” We reassert our position that the retained changes in the 2019 rule and the revisions adopted from the 2023 proposed rule maintain the pre-2019 scope of the effects analysis. These changes provide further clarity in the application of the longstanding practice of determining the full range of effects of a proposed action under consultation, including those that result from other activities that would not occur but for the proposed action. Under the pre-2019 definition, there was undue focus on categorizing the specific type of effect analyzed as part of the “effects of the action” (
i.e.,
assigning effects to the categories of direct, indirect, interrelated, or interdependent). The changes promulgated in 2019 to the definition avoided that exercise of categorizing the effects, but all these effects are, nevertheless, still analyzed as part of the “effects of the action.” Many commenters requested the Services retain the reference to § 402.17 in the “effects of the action” definition and the content of § 402.17. The comments related to § 402.17 and the “effects of the action” definition centered on the two-part causation test, particularly the framework provided for determining whether an activity or consequence is reasonably certain to occur. Those comments that focused on § 402.17 are addressed below in the preamble to this final rule.

Comment 1:
One commenter recommended adding the word “likely” to the definition of “effects of the action” to assist in distinguishing that consequences of the action must be likely to occur in order to result in effects.

Response:
The current definition and the “but for” and “reasonably certain to occur” causation provide a clear test of what constitutes an effect of the action, including for other activities caused by the action. Adding the term “likely” would add ambiguity rather than clarifying the test for an effect of the action. The Services respectfully decline this requested change to the definition of “effects of the action.”

Comment 2:
Several commenters proposed incorporating the statutory requirement to use the best available scientific and commercial data into the “effects of the action” definition to support the two-part causation test.

Response:
The last sentence of section 7(a)(2) of the Act requires both the Federal action agencies and the Services to use “the best scientific and commercial data available.” This requirement applies to all aspects of the Services' application of section 7(a)(2) consultation, including determining what activities or consequences are considered reasonably certain to occur when analyzing the “effects of the action” and any “cumulative effects.” Therefore, we respectfully decline the suggestion to add “using the best scientific and commercial data available” to the “effects of the action” definition because using the best scientific and commercial data available is already an explicit requirement of the Act for agencies and incorporated into our formulation of the biological opinion under the regulations. See 16 U.S.C. 1536(a)(2), 50 CFR 402.14(g)(8).

Comment 3:
Commenters recommended modifications to the definition of “effects of the action” to distinguish “activities” from the proposed action in order to apply the two-part causation test to both “activities” and “consequences.”

Response:
The modification of the definition in the 2023 proposed rule to add “but that are not part of the action” addresses this recommendation so the Services did not further modify the “effects of the action” definition. The reference to “activities” in the first sentence of the 2019 “effects of the action” definition and in the revised version of the definition in this final rule is to those activities that are caused by, but are not part of, the proposed action. Under the pre-2019 definition, as described in the 2018 preamble for the proposed rule to the 2019 rule, the intent in changing the definition to “other activities” that would have been considered “indirect effects” or “interrelated” or “interdependent” actions was for consultations to focus on identifying the full range of the consequences rather than categorizing them (84 FR 44976-44977, August 27, 2019; 83 FR 35178 at 35183, July 25, 2018). The two-part causation test is used to determine when a consequence of these other activities is caused by the proposed action because the other activities (and the consequences of them) would not occur “but for” the proposed action and are “reasonably certain to occur.”

Comment 4:
Several commenters suggested returning to the 1986 “effects of the action” definition to use the terms “direct,” “indirect,” “interrelated,” and “interdependent.” They believe the 2019 definition narrows the scope of “effects of the action” and argue that collapsing direct and indirect effects into a single “consequences” requirement changes past practice because indirect effects did not require “but for” causation prior to 2019. Commenters noted that the 1998 Consultation Handbook required “but for” only in analyzing “take” resulting from the action, as well as interrelated and interdependent actions.

Response:
The 1986 definition of “indirect effects” referred to effects that are “caused by” the proposed action whereas the Services' 1998 Consultation

Handbook includes the phrase “caused by or results from,” both of which require an assessment of a causal connection between an action and an effect. The “but for” causation test in the 2019 revised definition of “effects of the action” and as modified in this final rule is similar to “caused by” or “caused by or results from” in that both tests speak to a connection between the proposed action and the consequent results of that action, whether they be (1) physical, chemical, or biotic consequences to the environment, the species or critical habitat, or (2) activities that would not occur but for the proposed action. Both tests require a determination of factual causation, and since 2019 we have not observed a change in the Services' practice in applying “but for” causation to consequences once termed “indirect effects” compared to the regulatory term “caused by.” As we noted in the preamble of the 2018 proposed rule, “[i]t has long been our practice that identification of direct and indirect effects as well as interrelated and interdependent actions is governed by the `but for' standard of causation.” Similarly, as defined in § 402.02, “incidental take refers to takings that
result from
. . . an otherwise lawful activity.” 50 CFR 402.02 (emphasis added). Moreover, our 1998 Consultation Handbook states: “In determining whether the proposed action is reasonably likely to be the direct or indirect cause of incidental take, the Services use the simple causation principle:
i.e.,
`but for' the implementation of the proposed action. . . .” (1998 Consultation Handbook, page 4-47). For these reasons, the Services continue to maintain that the “but for” test reflects the Services' long-standing practice and has not changed the scope of our analyses. Therefore, we decline the commenters' request.

Comment 5:
Commenters recommended that consideration of effects of ongoing agency actions not be moved to the “environmental baseline.” They argued that, if ongoing agency actions are moved to the “environmental baseline,” it will be difficult for the Services to determine whether a species already exists in a state of baseline jeopardy because of these previously authorized ongoing Federal actions.

Response:
The concept of “baseline jeopardy” originates from cases like
Nat'l Wildlife Fed.
v.
NMFS,
524 F.3d 917, 930 (9th Cir. 2008) (“[l]ikewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm”). As we noted in our responses to comments in the 2019 rule and re-affirm here, the Services' position on “baseline jeopardy” remains that the statute and regulations do not contain any provisions under which a species should be found to be already (pre-action) in an existing status of “baseline jeopardy,” such that any additional adverse impacts must be found automatically to meet the regulatory standards for “jeopardize the continued existence of” or “destruction or adverse modification.” See 84 FR 44976 at 44987; August 27, 2019. Please see the responses to comments on the definition of “environmental baseline” below for more details.

Comment 6:
Commenters noted that, while the 2019 definition may reflect the Services' longstanding practice, codifying the two-pronged test affects agencies' ability to fulfill their duties under section 7. Many commenters reiterated concerns raised during rulemaking on the 2019 rule that moving ongoing actions and their effects from the “effects of the action” to the “environmental baseline” undermines the Services' ability to conduct a thorough jeopardy analysis. Commenters argue that moving ongoing activities to the “environmental baseline” will exclude them from the jeopardy analysis.

Response:
The Services respectfully disagree with the comments that use of the two-part causation test affects the ability of agencies to fulfill their section 7(a)(2) responsibilities. As we stated in 2019 and in the preamble to the 2023 proposed rule, the use of the two-part causation test has been part of our practice since the 1986 final rule on interagency cooperation (51 FR 19926 at 19933; June 3, 1986) (the Services did not define “effects of the action” in the original 1978 section 7 regulations (43 FR 870; January 4, 1978)). Consultation under the Act is conducted on the effects of the entire proposed action (all consequences caused by the proposed action). To further clarify, proposed actions for ongoing activities, even those that incrementally improve conditions may still have adverse effects (
i.e.,
are not wholly beneficial), and require formal consultation. The analysis of an action's effects is fact-based and consultation-specific. In terms of the jeopardy and destruction-or-adverse-modification analyses, the Services consider the effects of the action added to the “environmental baseline” and cumulative effects in light of the status of the species and critical habitat. Therefore, removing the “environmental baseline” definition from the definition of “effects of the action” does not affect either jeopardy or destruction-or-adverse-modification analyses, and the Services decline the suggestion to retain “environmental baseline” in the “effects of the action” definition. We provide additional discussion of how “ongoing activities” are considered for purposes of the “environmental baseline” in the “environmental baseline” section of this preamble below.

Comment 7:
Other commenters asserted that the “effects of the action” definition is overly broad and will unnecessarily restrict future projects requiring section 7 consultation because of the need for the Services and Federal action agencies to analyze an array of effects that are unrelated or only tangentially related to the proposed action. Conversely, several commenters asserted the proposed changes to the definition specific to the two-part causation test raise the bar for any future review of the effects of a proposed action without supporting rationale as to why a higher bar is needed. These commenters argue that the “but for” and “reasonably certain to occur” requirements of the two-part causation test are too high given that “may affect” is the trigger for consultation.

Response:
The revisions made in the 2019 rule and the further minor revisions in this final rule will not shift the scope of effects we consider under our revised definition of “effects of the action.” Therefore, as explained in the 2019 rule, our analyses will neither raise nor lower the bar for the scope of analysis of effects that has been in place since 1986. All the effects of the action considered since the 1986 revisions to the definition are still included in the scope of “effects of the action,” and no other effects or activities that are not caused by the proposed Federal action will be included. To the extent that commenters are asserting we should further restrict the definition of “effects of the action” to only those effects within the jurisdiction or control of the Federal agency, we decline this request for the same reasons discussed in 2019.
See
84 FR 44991, August 27, 2019. The revisions to the definition and the changes made in 2019 did not change existing practice in determining the effects of the action, which includes what were referred to as direct, indirect, interrelated, and interdependent in the 1986 definition of “effects of the action.” The improvements to the definition in the 2019 rule and in this revision include the explicit establishment of the two-part test for effects, which codifies the Services' longstanding analysis in a clear standard in order to be more consistent

and transparent. The Services do not find that the 2019 definition or the revised definition in this rule narrows or broadens the scope of the effects that would be considered in a section 7(a)(2) consultation. Similar comments were made relating to § 402.17; please see our responses pertaining to comments on that section of the proposed rule below in this preamble.

Comment 8:
One commenter argued that removing the definition of “reasonably certain to occur” while leaving in the concept that effects are not bound by time or space will create an unworkable burden on the consulting agency because an agency will not be able to evaluate all possible effects. Eliminating the definition of “reasonably certain” removes the two-tier system for identifying effects.

Response:
The Services are retaining “reasonably certain to occur” in the revisions to the “effects of the action” definition as part of the two-part causation test. As discussed above, the revisions to the definition in this final rule will not shift the scope of effects we consider in section 7(a)(2) consultations. In addition, while we provided guidance on the factors to consider when determining whether other activities are “reasonably certain to occur,” the Services did not define the term and do not intend to define it because we are not setting limits on the types of activities that are reasonably certain to occur. We intend to provide further guidance in an updated Consultation Handbook. See also our response to comments related to § 402.17.

Comment 9:
Several commenters recommended retaining § 402.17 and the reference to it in the “effects of the action” definition or incorporating the content of § 402.17 in the definition if the section is removed from the regulations. Commenters also recommended examples for defining when an activity is reasonably certain to occur and guidance for action agencies and the Services to ensure consistency in the application of the test. In addition, commenters suggested regulatory language that considers additional factors such as the proximity of the action in relation to the effect, geographical distribution of effects, timing of the effect in relation to sensitive periods of a species' life cycle, the nature and duration of the effect, and disturbance frequency as described in the 1998 Consultation Handbook discussion on the multi-factor tests to analyze the effects of a proposed action and related activities on species and critical habitat. Conversely, another commenter supported the removal of § 402.17 but encouraged the Services to work towards a stricter, quantifiable definition of “reasonably certain to occur.”

Response:
The Services support the recommendation to provide examples for defining when an activity is reasonably certain to occur and guidance on application of the two-part causation test. We believe this information is more appropriately addressed in an update to the Consultation Handbook rather than regulatory text. The Services update to the Consultation Handbook will incorporate changes to the regulations since the handbook was issued in 1998. For comments related to § 402.17, please see that section of the preamble below.

Comment 10:
Some commenters indicated that the proposed changes to the “effects of the action” definition will cause greater uncertainty in terms of what to include in the effects of the action. Several also noted that the addition of the phrase “but that are not part of the action” to the definition is unclear and recommended that guidance be created by the Services to ensure the interpretation of “not part of the action” is consistent across offices and to clarify the scope or extent of activities outside the proposed action that will be analyzed. Conversely, other commenters believe the addition of “but that are not part of the action” is a helpful clarification and recommend further modification of the definition to clarify that the two-part causation test does not apply to the proposed action itself (as opposed to other activities caused by, but that are not part of, the proposed action).

Response:
As discussed previously, the Services believe the minor revisions to the definition in this final rule will not shift the scope of effects considered in section 7(a)(2) consultations. The addition of “but that are not part of the action” to the definition is meant to maintain the scope of the analysis of the effects by clarifying that it includes other activities caused by the proposed action that are reasonably certain to occur. The Services respectfully decline the suggestion to further refine the definition to explicitly state that the two-part causation test does not apply to the proposed action itself but agree that guidance on the application of the two-part causation test is warranted and anticipate including this information in the updated Consultation Handbook.

Comment 11:
One commenter argued that the “but for” causation standard casts a wider net than a “proximate cause” standard. The commenter maintains that a proximate cause is a cause that directly produces an event and without which the event would not have occurred. “But for” causation treats the effects of an action as a series of events and circumstances that can be traced to a particular action but without regard to whether either the agency action is responsible for or the agency has jurisdiction or authority to control those events and circumstances. The Services should revise the proposed “effects of the action” definition to eliminate the “but for” causation language and adopt a proximate cause standard.

Response:
There is no Federal standard definition for “proximate cause,” a term that developed through judicial decisions. Proximate cause can differ if used for assigning liability in criminal action as compared to civil matters, neither of which is directly relevant in the section 7(a)(2) context of evaluating the anticipated effects of proposed Federal actions on listed species and critical habitat. We declined to include a proximate cause element in our definition of “effects of the action” in 2019 and do so again here. See 84 FR at 44990-44991, August 27, 2019. As discussed above, the “but for” causation standard is, in essence, a factual causation standard. As part of regular practice in conducting a complete analysis of the effects of proposed Federal actions, the Services' practice is to apply the concepts of “but for” causation and “reasonably certain to occur” when identifying the effects of the action. The changes to the “effects of the action” definition in our 2019 rule merely made them explicit. The Services' scope of the effects analysis did not change with the 2019 change to the “effects of the action” definition, and we do not anticipate a change in scope because of the minor changes to the “effects of the action” in this final rule.

Comment 12:
Several commenters stated that the “reasonably certain to occur” limitation applied only to “indirect effects” and “cumulative effects” prior to the 2019 rule's “effects of the action” definition. They noted that this situation leads to exclusion of effects, but that uncertainty or data gaps should not be used to limit consideration of effects of a proposed agency action. They further argue that the reasonable certainty standard could conflict with the requirement to use the best available scientific and commercial data, particularly where there may be incomplete information or emerging science.

Response:
We reaffirm what we stated in the 2019 rule, that the two-part effects test adopted at that time does not alter the scope of the Services' analysis.

The Services also agree that, in applying our two-part effects test, we must use the best available scientific and commercial data, which is expressly required by the statute and as part of our regulations at 50 CFR 402.14(g)(8). Consistent with considering the best available information, we will necessarily be required to exercise scientific judgment to resolve uncertainties and information gaps in applying our effects test. This process does not ignore effects but instead ensures that we adequately consider the range of effects caused by the proposed action. For further discussion relevant to this comment, please see the responses to comments regarding § 402.17.

Comment 13:
Several commenters noted that the proposed change to the “effects of the action” definition will remove the framework for determining whether an activity or consequence is “reasonably certain to occur” that is critical for determining what to include in an agency's effects analysis, including when applying the standard to larger scales such as a program.

Response:
The Services respectfully disagree with these comments; the definition and current practice adequately capture the “reasonably certain to occur” standard. As described in the 2019 rule, a section 7(a)(2) consultation performed at the level of a regional or national program is often referred to as a programmatic consultation, and often the proposed action falls into the category referred to as a framework programmatic action described in our 2015 rule revising incidental take statement regulations (80 FR 26832, May 11, 2015). In these instances, the “but for” and “reasonably certain to occur” parts of the test extend to the consequences that would be expected to occur under the program generally, but not to the specifics of actual projects that may receive future authorization under the program. Effects analyses at this more generalized level are necessary because the Federal agency often does not have specific information about the number, location, timing, frequency, precise methods, and intensity of the site-specific actions or activities for their program. We are able to provide an informed effects analysis at a more generalized level by analyzing the project design criteria, best management practices, standards and guidelines, and other provisions the program adopts to minimize the impact of future actions under the program.

Alternatively, some Federal agencies may be able to provide somewhat more specific information on,
e.g.,
the numbers, timing, and location of activities under their plan or program. In those instances, we may have sufficient information to address not only the generalized nature of the program's effects but also the specific anticipated consequences that are reasonably certain to occur from specific actions that will be subsequently authorized under the program. Additional guidance regarding application of the two-part causation test (“but for” and “reasonably certain to occur”) and programmatic consultation will be included in the updated Consultation Handbook. For more general discussion of the removal of the “reasonably certain to occur” framework provided by § 402.17, please see the responses to comments on that section in the preamble below.

Comment 14:
Several commenters noted that the requirement that a “reasonably certain to occur” finding be based on “clear and substantial information” has created confusion and conflicts with the statutory requirement to use the “best scientific and commercial data available” and agreed with the removal of § 402.17 in its entirety. Another commenter supported retaining all of § 402.17, including the requirement to use “clear and substantial information,” noting that this language supports the requirement to use the “best scientific and commercial data available.”

Response:
The Services are removing § 402.17 via this final rule. The use of the terms “clear and substantial information” creates confusion with the statutory requirement to use the “best scientific and commercial data available.” We disagree with the comment that retaining the “clear and substantial” language in § 402.17 supports the required use of the “best scientific and commercial data available.” Please see the discussion of the term “clear and substantial” provided in response to comments on § 402.17.

Definition of “Environmental Baseline”

As proposed, we are revising the third sentence of the definition of “environmental baseline” by replacing the term “consequences” with the word “impacts,” removing the term “ongoing,” and adding the term “Federal” in two locations. The third sentence now reads: The impacts to listed species or designated critical habitat from Federal agency activities or existing Federal agency facilities that are not within the agency's discretion to modify are part of the environmental baseline. The changes to the definition of “environmental baseline” in this rule are narrow and serve to clarify the intended application and scope of the final sentence that was added in 2019. The Services received a wide variety of comments on our proposed revisions to the definition of “environmental baseline,” most of which were focused on the original change in the 2019 rule. These comments ranged from support of the 2023 proposed revisions, requests to retain the original final sentence of the 2019 definition, and requests to remove the entire 2019 definition and revert to the definition as it stood prior to the 2019 rule. Commenters in support of the proposed revisions to the 2019 definition generally agreed with the reasoning of the Services and in some cases requested additional guidance on the application of the definition. The comments in opposition to the proposed revisions to the 2019 definition generally fell under two main themes of comments—both generally focused on the final sentence of the 2019 definition. One group focused specifically on the Services' revisions to the final sentence of the 2019 definition and whether and how the role of Federal agency discretion should be considered during a section 7 consultation. The second group focused on the proposed language changes to the final sentence, with most attention on opposition to the removal of the word “ongoing.” With regard to the request for additional guidance, the Services intend to provide additional guidance and examples in an updated Consultation Handbook.

Comment 1:
Several commenters requested the Services revert entirely to the definition of “environmental baseline” as it stood prior to the 2019 regulations by either (1) pointing to other issues as described in other comments below or (2) attributing the entire definition to an earlier Presidential administration despite much of the text of the definition stemming from the pre-2019 regulations.

Response:
The Services decline to return to the pre-2019 “environmental baseline” definition for several reasons. First, the 2019 definition retained much of the language of the pre-2019 definition, while also making the definition a stand-alone definition within the § 402.02 regulations. This regulatory change did not change the role of the “environmental baseline” in the section 7 consultation analysis, and the Services also reaffirmed in § 402.14(g)(4) that the analysis presented in the biological opinion must add the “effects of the action” to the “environmental baseline” and “cumulative effects.” This regulatory revision also removed a circular reference that occurred when the “environmental baseline” definition

was previously embedded within the “effects of the action” definition. By creating two separate definitions of “effects of the action” and “environmental baseline,” we are underscoring the separate nature of the analyses which are then to be combined into an aggregate assessment.

Second, by clarifying that those portions of a Federal activity or facility that are outside the control of the Federal agency to modify are included in the “environmental baseline,” the Services highlighted that the effects of discretionary activities or facilities contained in the proposed action would be evaluated within the context of (added to) the baseline and “cumulative effects” in order to determine whether those added effects were or were not “likely to jeopardize” a species. Third, in the 2019 “environmental baseline” definition, the Services clarified that the primary purpose of the “environmental baseline” is to present the condition of the listed species and critical habitat in the action area as impacted by the various factors of the “environmental baseline.” Prior interpretations of the pre-2019 definition could indicate that the baseline was simply a description of the impacts of those factors on the action area—missing the important connection to the condition of the species and critical habitat that may be further affected by the effects of a Federal action. With the 2019 rule, the Services highlighted two important elements: (1) That the purpose of the baseline was to assess the condition of the species and critical habitat and (2) that this condition assessment was taken into consideration prior to adding the consequences of the proposed action (which in some instances might be the future continued, discretionary operations of a facility such as a dam). These two elements provide the foundation to which the Services add the effects of the proposed action.

Comment 2:
Some commenters reiterated their 2019 comments that the 2019 revised definition of “environmental baseline” hides or ignores the significant impacts of past and present activities and facilities, some of which may have played a significant role in the present status of the species and its critical habitat, asserting that the species is thus in “baseline jeopardy.” Further, commenters seem to imply that only large actions could then likely jeopardize listed species or destroy or adversely modify critical habitat.

Response:
The Services disagree and have revised the definition's final sentence to clarify those aspects of a Federal action involving Federal facilities and activities that are in the “environmental baseline” and those that will be considered as “effects of the action.” As required by the regulations, the “effects of the action” will be added to the “environmental baseline,” thus the effects to a listed species or critical habitat already impacted by the “environmental baseline” will be considered in full light of the condition of that species and critical habitat. In addition to the overall status of the species, the relative health and viability of the species absent the proposed action in the action area is the starting point for the assessment and that condition informs the ability of the species to withstand further perturbations to its numbers, reproduction, and distribution. As we noted in our responses to comments in the 2019 rule and re-affirm here, the statute and regulations do not contain any provisions under which a species should be found to be already (pre-action) “in baseline jeopardy,” such that any additional adverse impacts must be found to meet the regulatory standards for “jeopardize the continued existence of” or “destruction or adverse modification.” As we further noted in 2019, and reaffirm here, the Services do not dispute that some listed species are more imperiled than others, and that for some very rare or very imperiled species, the amount of adverse effects to the species or its critical habitat that can occur without triggering a jeopardy or “destruction or adverse modification” determination may be small. See 84 FR 44976 at 44987, August 27, 2019.

Comment 3:
A few commenters focused on the issue of Federal agency discretion and whether it was appropriate to further consider whether a Federal agency had discretion over some or all of its proposed action once consultation was initiated.

Response:
Consultation under section 7(a)(2) is required when a discretionary Federal action may affect a listed species or designated critical habitat. As part of that process, it is important that the Federal action agency and the Services correctly identify the Federal action. Following this step, it is then also important to assess the “effects of the action,” which include the activities caused by (but are not part of) the proposed action and the effects of those activities. As the Services noted in the 2019 rule, and re-affirm here, the courts and the Services have concluded that, in general, the effects on listed species and critical habitat attributable to Federal agency activities and existing Federal agency facilities are part of the “environmental baseline” when the action agency has no discretion to modify them. For example, with respect to existing Federal facilities, such as a dam, courts have recognized that effects from the existence of the dam can properly be considered a past and present impact included in the “environmental baseline” when the Federal agency lacks discretion to modify the dam.
See, e.g., Friends of River
v.
NMFS,
293 F. Supp. 3d 1151, 1166 (E.D. Cal. 2018). Under these lines of cases involving dams, when a Federal agency has authority for managing or operating a dam, but lacks discretion to remove or modify the physical structure of the dam, any impacts from the physical presence of the dam in the river are appropriately placed in the “environmental baseline” and are not considered an “effect of the action” under consultation. Thus, it is important to note that the above analytical process for determining the “effects of the action” does not include consideration of the discretion of the Federal action agency over the activities or facilities of another Federal agency or any other third party. To the extent that any effects are caused by the proposed Federal action, per the “but for” and “reasonably certain to occur” standards of the “effects of the action” definition, they would be considered as “effects of the action” in the consultation analyses. Those effects that are not caused by the Federal action would be included in the “environmental baseline” or “cumulative effects” as appropriate.

Comment 4:
Several commenters advocated that the question of discretion should also apply to third party actions or the activities or facilities that are the subject of a Federal action, such as permitting or funding, with some commenters providing site-specific examples.

Response:
As we noted above in this preamble and in the proposed rule, this determination is made on a case-by-case basis as determined by discussions between the Services and the appropriate Federal agency on the basis of the information and evidence available at the time. In most section 7 consultations, the question of discretion is not a factor and, indeed, several examples raised by commenters were on large-scale Federal activities such as water operations or land management, which make up a relatively small portion of ESA section 7 consultations. Many of the location-, activity-, or facility-specific concerns raised by some commenters are beyond the scope of this rule and best handled through site-specific consultations.

To answer some of the general questions or points of confusion, the Services note that the current revisions

are minor in scope to further clarify the intent of the final sentence added to the “environmental baseline” definition in 2019 and retained in this rule. These revisions do not modify current practice related to how past and present non-Federal actions are represented in the summary of impacts of the “environmental baseline” on the condition of listed species and critical habitat. In addition, the revisions do not alter current practice related to the analysis of the effects of a proposed discretionary Federal action that involves the authorization or funding of an action taken by a non-Federal entity such as a private landowner. The Services decline to speculate or generalize in a response to public comments as to the breadth of scope of agency discretion in all of these actions as these are case-specific determinations.

Comment 5:
Some commenters requested additional discussion or guidance on how the determination of discretion would proceed. Another commenter argued that if discretion continues to be a factor when determining the “environmental baseline” the Services should retain the authority to make the determination on their own.

Response:
As we noted in the proposed rule, we will work closely with the Federal action agency to understand the scope of their discretion in a particular case to inform those aspects of a Federal agency activity or facility that are a part of the “environmental baseline.”
See
88 FR 40753 at 40756, June 22, 203. Typically, Federal discretion over an action or facility is defined within all the laws and regulations under which the action will be taken. Where questions regarding discretion arise during a consultation, the supporting record of the consultation should include the documentation upon which the separation between discretionary Federal agency action and those non-discretionary activities or facilities was made. While the Services ultimately determine the content and scope of the analyses in our biological opinions, generally we would defer to the Federal action agency's supported interpretation of their authorities for purposes of identifying what non-discretionary Federal facilities and activities are included in the “environmental baseline.”
See id.
As a general matter, the Services and an action agency can come to a specific understanding about the nature of an action agency's discretion and how to treat both effects of past and future actions stemming from the action agency's decisions.

Comment 6:
One commenter objected to the definitions of “environmental baseline” and “effects of the action” because the commenter asserts that the effects of the action would include even those consequences of the Federal action that have occurred in the past and that the action agency and any proponent do not intend to change going forward and that the approach does not allow for adaptation due to climate change. The commenter also requested that the Services define the parameters of actions and effects for ongoing Federal project operations such that: (1) the proposed action should be the future discretionary actions related to the operation of the existing facilities in the existing environment; (2) the effects of the action should focus on the manner in which the current status of the species and existing condition of its habitat will be affected by the proposed future discretionary actions; and (3) the examination of effects of the discretionary proposed action does not include the baseline effects of or from the original construction of the facilities or the past operations and maintenance activities that have occurred.

Response:
The Services decline to define the parameters of the “environmental baseline” and “effects of the action” as the commenter requests. The Services' definitions of “effects of the action” and “environmental baseline” are crafted to distinguish between those impacts that are properly considered as the “environmental baseline” and those consequences of a proposed discretionary Federal action that would be considered the “effects of the action.” Further, the baseline includes the original construction of facilities and past operations and maintenance that have occurred. However, the proposed future discretionary actions are all of the discretionary actions that will occur—even those ongoing discretionary actions for which no changes are envisioned. As we noted in the proposed rule, “the Federal agency may propose to continue the operations of the dam's flow regime with no changes from past practices, or with only minor changes. Regardless of their “ongoing” nature, all the consequences of the proposed discretionary operations of the structure are “effects of the action” (88 FR 40753 at 40756, June 22, 2023). In other words, those future consequences of discretionary operations are properly considered “effects of the action” even if those similar operations that occurred in the past are included in the “environmental baseline.” A full assessment of the proposed Federal action will ultimately include the “effects of the action” added to the “environmental baseline” and any anticipated “cumulative effects.” Regarding the comment about consideration of climate change and the consideration of action effects and the “environmental baseline,” the Services note that climate change is considered as appropriate in all ESA section 7 consultations, including how past, present, and future conditions are impacted and the resulting “effects of the action” in context with those impacts.

Comment 7:
One commenter requested information regarding future planned revisions to the “environmental baseline” definition.

Response:
The Services note that the commenter may have misread the proposed rule. We do not anticipate further refining the definition of “environmental baseline.”

Comment 8:
Several commenters raised the issue of existing structures and how they would be considered under these regulations. Commenters inquired whether the 2019 regulations and the regulations in this rule allow for all existing structures to be included in the “environmental baseline.” Some commenters requested that the Services explicitly include that direction in the regulations. In other instances, commenters were concerned that the definition allows for past harms to the species and habitat to be ignored.

Response:
The Services note that neither the 2019 definition of “environmental baseline,” nor the minor revisions adopted in this final rule, change current or past practice and thus do not treat existing structures differently than under the prior regulations. The final sentence of the definition in the 2019 rule was intended to clarify current practice and how the discretionary and non-discretionary portions of a Federal activity or facility are considered in the baseline and “effects of the action.” The Services decline to state that all existing structures are included in the “environmental baseline”; existing structures may be included in the analysis of the “effects of the action” depending on the Federal action under consultation. Whether an existing structure is in the baseline is a case-specific determination that includes discretion, prior consultations, and temporal considerations.

Regarding concerns that the current definition allows for past impacts to be ignored by residing in the baseline, the Services restate that the 2019 baseline definition revision, which primarily made the definition a stand-alone

definition versus an embedded definition within the “effects of the action,” along with current regulations as amended, clarifies longstanding past and current practice in the treatment of those impacts that are a part of the “environmental baseline.” Importantly, by accounting for these past and present impacts in the baseline and then adding the effects of the proposed action to the “environmental baseline,” the Services do not “let Federal agencies off the hook,” as suggested by some commenters, but instead consider the consequences of a Federal action in the context of the past and present impacts to listed species and critical habitat in the action area.

The ESA section 7(a)(2) consultation process applies only when a Federal agency proposes to authorize, fund, or carry out a discretionary action that may affect a listed species or designated critical habitat. At that time, the effects of the proposed Federal action are analyzed and added to the impacts of the “environmental baseline,” which includes the past impacts raised by commenters. However, the section 7(a)(2) consultation process is not intended to “right the wrongs of the past” but to ensure that proposed Federal actions are “not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.” As noted elsewhere, the health and viability of the species absent the proposed action is the starting point for the assessment and that condition informs the ability of the species to withstand further perturbations to its numbers, reproduction, or distribution. Thus, past impacts and the resulting condition of the listed species and critical habitat are crucial to the overall analysis in the section 7 consultation.

Comment 9:
A few commenters requested deletion of the final sentence of the “environmental baseline” definition given the purported confusion it creates or perceived inappropriate narrowing or expansion of the scope of the definition. Others suggested different revisions from the Services' proposed minor amendments to the language.

Response:
As noted previously, the sentence was added to distinguish those cases where an existing Federal facility or activity must be considered as part of the “effects of the action” versus past argued interpretations or confusion that all existing facilities and activities were de facto in the baseline. By evaluating the effects of discretionary actions against the backdrop of the “environmental baseline” and “cumulative effects” (future non-Federal activities that are reasonably certain to occur), the Services are able to assess whether the proposed action is “likely to jeopardize a listed species” or destroy or adversely modify critical habitat. This evaluation applies whether the proposed action is a novel action upon the landscape or a proposed action that includes another 10 years of the same types of consequences that have already led to species declines and habitat degradation.

The Services appreciate the suggested revisions to the final sentence of the “environmental baseline” definition, which some commenters offered in the event that their requests to delete the sentence were declined. However, the suggested revisions unintentionally resulted in the very concerns raised by the commenters, and in one case, would have inappropriately narrowed the scope of the “environmental baseline.” In that case, a commenter suggested not including in the “environmental baseline” past or completed Federal actions that have not undergone and completed section 7 consultation. The Services decline to accept this proposed revision, as it could have an unintended and significant negative effect on listed species and critical habitat. By removing from the “environmental baseline” the impacts of those past or completed Federal actions (some of which pre-date the ESA itself and have no discretionary Federal action to trigger consultation), the Services would be restricted to looking at an incomplete “environmental baseline,” and thus an incomplete jeopardy analysis.

Comment 10:
The Services have revised the final sentence of the “environmental baseline” definition to replace the term “consequences” with “impacts.” We received comments both supporting and opposing this revision. While most understood the Services' intent to distinguish between those two terms, further explanation of the revision and the terms was requested.

Response:
The Services appreciate the support for this revision to the final sentence of the “environmental baseline” definition. The Services understand the concern about the initial confusion with use of the term “consequences” to refer to those effects of a Federal action that were caused by the Federal action. The Services proposed to change the word “consequences” to “impacts” in the final sentence of the “environmental baseline” definition to address this confusion. More specifically, the “environmental baseline” and the “effects of the action” are two distinct assessments. Both are ultimately aggregated when the “effects of the action” are added to the “environmental baseline.” However, the Services sought to reduce confusion and overlap between the two definitions by retaining the use of “consequences” when discussing the effects of the proposed Federal action and using “impacts” when discussing the “environmental baseline,” even though we consider “consequences,” “impacts,” and “effects” to be equivalent terms.

Comment 11:
One commenter requested that the “environmental baseline” not be limited to Federal projects, but instead include all projects that pre-date the ESA and all projects that have previously undergone ESA section 7 consultation. Further, the commenter requested clarification regarding the treatment of existing non-Federal projects (
e.g.,
residential or commercial piers and floats and private bulkheads), including the concept of “useful life” for both Federal and non-Federal actions.

Response:
The Services affirm that the current definition of “environmental baseline” is not limited to just Federal projects, but we decline to state that “all projects” are automatically included in the “environmental baseline.” The definition includes (in relevant part,) “the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation process” (50 CFR 402.02). The “Federal projects” in this excerpt refers to all actions proposed to be authorized, funded, or carried out by a Federal agency that have undergone consultation, which includes Federal permits for private or commercial actions. Because the definition of “environmental baseline,” including the minor revisions in this rule, does not change current practice, existing structures would be treated the same as they are under both current and prior practice (
i.e.,
before the 2019 regulation revisions). The Services decline to speak to the “useful life” of structures and how that issue would be treated nationwide as both are beyond the scope of this rule and would be addressed on a case-specific basis.

Comment 12:
The Services received a wide range of comments on the proposed revision to the final sentence of “environmental baseline” to remove the word “ongoing,” and to insert the word “Federal” in two places. Some commenters opposed the revision

because they opposed application of the standard to only Federal activities or facilities. A few commenters requested that “ongoing” be retained because they assert that all activities or facilities that are “ongoing” should be included in the “environmental baseline.” Some commenters opposed the revision because the result would be either that more activities and facilities would be “hidden” in the “environmental baseline” and not in the “effects of the action” or fewer would be in the “environmental baseline” and included within the “effects of the action.”

Response:
Both the 2019 regulations and the regulations in this rule clarify existing practice related to the “environmental baseline.” While we cannot comment on the fact or site-specific circumstances that some commenters raise, every ESA section 7(a)(2) consultation is unique and based on what has been proposed by a Federal agency to authorize, fund, or carry out and the nature of the Federal agency's discretion and authority. Some of the examples raised may have included consultations that appropriately identified the Federal action and “effects of the action” based upon specific facts, applicable laws or other authorities, and prior consultation history. Thus, the conclusions in those examples do not necessarily apply in other instances, and it is incumbent on the Services and the Federal action agency to carefully describe and discuss what the Federal action may be in any particular case.

Several commenters were focused on the “ongoing” nature of an activity for determining whether that activity is evaluated in the environmental baseline. The Services proposed to remove the term “ongoing” and insert the term “Federal” because our experience implementing the 2019 rule echoes this same unintended focus on “ongoing” and not on the relevant portions of the sentence (
i.e.,
the scope of the Federal agency's discretion). As explained in our proposed rulemaking, we found that removal of the term “ongoing” from the relevant portion of the regulatory definition of “environmental baseline” would, instead, shift the focus to the appropriate factor for determining whether an activity is part of the “environmental baseline”—whether or not the action agency has discretion to modify that activity. The Services decline to reinstate the term “ongoing” or remove the term “Federal” to avoid this improper focus in the future.

The Services also re-affirm that the pre-2019 definition, the 2019 definition, and the minor revisions in this rule maintain the same standards for the Federal, State, private, and other human activities that are considered in the “environmental baseline” and the scope of the effects of proposed Federal actions that will be analyzed as “effects of the action.” Existing non-Federal structures and activities occurring within an “action area” are a part of the “environmental baseline,” unless a Federal agency proposes to authorize, fund, or carry out an action related to the structure or activity. At that time, the non-Federal structure or activity may be subject to an ESA consultation if the proposed Federal action “may affect” listed species or designated critical habitat. Nothing in the revised “environmental baseline” definition changes this requirement of the statute. Despite the assertion of some commenters, if a Federal agency is proposing to authorize, fund, or carry out a repair or modification to a non-Federal structure, the consultation must evaluate the effects of the action, including all consequences to listed species or critical habitat caused by the proposed action.

Although commenters cite an example from the 1998 Consultation Handbook, that example fails to account for the wide variety of Federal actions that may occur related to an existing Federal facility, and thus one approach does not fit all situations. The Services again decline to universally state that all “ongoing” facilities or activities are in the “environmental baseline.” First, the term “ongoing” itself creates confusion when a longstanding operation that is within the discretionary authority of a Federal agency is being proposed for renewal. The prior operations are within the “environmental baseline,” but the future operations, which are part of the discretionary proposed action, are properly considered as effects of the action. In addition, the Services and Federal action agencies should work closely to examine and understand the consequences of a proposed Federal action. In some instances, the nature of the action may indeed result in a similar finding as the turbine example cited from the 1998 Consultation Handbook (See 1998 ESA Consultation Handbook, Chapter 4, Interrelated and Interdependent Actions p. 4-27). In other instances, the nature of the action may encompass more of the operations or even structure of the facility itself. It is beyond the scope of this rule to provide examples that cover all such possibilities. Case-specific circumstances must be considered and should be done in collaboration between the Services and the Federal action agency as discussed in the 2019 rule and the 2023 proposed rule.

The Services also clarify that the 2019 regulatory amendments, and the minor revisions in this final rule, do not remove existing structures and operations from the baseline as some commenters suggested. Similarly, the 2019 and 2023 revisions do not move most structures and operations to the proposed action if they are not either the proposed action itself or activities caused by the proposed action. The full definition of the “environmental baseline” includes those past impacts or Federal, State, and private actions in the action area. The final sentence is intended to address questions that have arisen regarding the consideration of the non-discretionary aspects of Federal facilities or activities. In general, Federal permitting and authorization of existing non-Federal facilities and activities is a discretionary action and requires section 7(a)(2) consultation if the proposed action may affect listed species or critical habitat. The past impacts of non-Federal facilities or non-Federal activities would be included in the “environmental baseline” whereas future consequences of the proposed Federal authorization action for that facility or activity would be the subject of the consultation and “effects of the action” analysis. In some instances, an effects analysis may need to assess the future and extended life of a structure, yet the past existence and impacts of the structure are included in the “environmental baseline.”

The 2019 and current revisions to the “environmental baseline” definition do not prescribe particular assumptions that would be applied to all repair, maintenance, or modification activities proposed for authorization, funding, or implementation by a Federal agency. The consequences of such activities, including whether a proposed action extends the life of a structure or operation, would be reviewed per the standards of the “effects of the action” definition and may differ significantly from case to case. Further, what was or was not considered in prior consultations, if any, may also vary. The definition also does not prescribe how the effects of structures past their useful life would be analyzed as part of the “environmental baseline.” If those structures are not the subject of the consultation and are causing impacts to the condition of listed species and critical habitat in the action area, they would be included in the baseline, but it is beyond the scope of this rule to further describe or prescribe how that analysis would be done.

Comment 13:
The Services received several comments specific to consultations on projects in the Salish Sea of Washington, an existing programmatic consultation, a NMFS 2018 internal guidance document, and the Puget Sound Nearshore Habitat Conservation Calculator.

Response:
Generally, these comments are outside the scope of this rulemaking action, and given that the regulations do not alter current practice, the regulations are not expected to alter the consultations and tools raised by the commenters. Regarding the National Marine Fisheries Service, West Coast Region, Internal Guidance on Assessing the Effects of Structures in Endangered Species Act Section 7 Consultation (April 18, 2018), NMFS withdrew this guidance after issuance of the January 2022, Department of the Army (Civil Works) and the National Oceanic and Atmospheric Administration Memorandum. The 2022 Memorandum, which is based on existing legal requirements, is national in scope and clarifies potential differences between the U.S. Army Corps of Engineers Civil Works projects and Regulatory Program projects based on agency discretion. The 2022 memorandum is fully consistent with the Services' section 7 regulations, including the definitions of “effects of the action” and “environmental baseline” as revised in this final rule. The memorandum does not impose any new or additional requirements on action agencies, applicants, or NMFS, and does not alter the existing requirements relative to section 7 consultations. Commenters are correct that future Federal actions related to Federal or non-Federal facilities may trigger an ESA consultation on the proposed Federal action, but it is beyond the scope of this rule to speculate whether that consultation would require mitigation under existing programmatics or RPM offsetting measures, costly or otherwise.

Comment 14:
One commenter questioned whether the modification to the final sentence of the “environmental baseline” definition forecloses the consideration of what used to be considered “interrelated” and “interdependent” actions as “effects of the action.”

Response:
The Services appreciate the commenter's perspective on the possible interpretation of the revised sentence. If the activities of other Federal agencies would be caused by the proposed Federal action that is subject to consultation, then they would properly be considered as “effects of the action” and those Federal agencies should be action agencies in the section 7(a)(2) consultation. Further, in situations where there are multiple Federal agencies taking actions (authorizing and funding, for example) on the same non-Federal action, an efficient consultation process could include all of these agencies (even if one is designated as the lead agency). Our interpretation and application of the “environmental baseline” and “effects of the action” definitions would not be a change in practice. In most cases, other Federal agency activities or facilities that are not caused by the proposed Federal action would be included within the “environmental baseline” (or subject to their own ESA consultation as needed). The Services decline to further revise the final sentence but note the commenter's concern for potential inclusion in further guidance.

Comment 15:
One commenter was concerned that the addition of “Federal” in the final sentence of the “environmental baseline” definition restricted the “effects of the action” to only the consequences where the Federal action agency has the discretion to modify the activity or facility.

Response:
Commenters misconstrue the effect of this revision. The Services are clarifying that the scope of application in the final sentence of “environmental baseline” is to Federal action agency (or agencies) activities and facilities. The inclusion of the word “Federal” does not alter the scope of the definition of “effects of the action.” As discussed in the “effects of the action” section above, if an activity or consequence meets the two-part test for an effect, then it is considered an “effect of the action” regardless of whether that activity or consequence is within the control of the Federal agency.

Comment 16:
One commenter was concerned that the revision to the final sentence of “environmental baseline” implies that facilities such as irrigation, diking, and drainage infrastructure are not within the “environmental baseline,” and any future Federal permitting, even for maintenance and repair of existing infrastructure, would require costly mitigation.

Response:
Existing Federal and non-Federal facilities and their operations are a part of the “environmental baseline,' as described in the definition (in relevant part): “The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area” (50 CFR 402.02). Commenters are correct that future Federal actions related to Federal or non-Federal facilities may require consultation under section 7(a)(2) of the ESA on the proposed Federal action, including a full analysis of the consequences of the Federal actions and activities caused by the Federal action. If consultation is required under section 7(a)(2) of the Act, it would be subject to the revisions of the implementing regulations at 50 CFR part 402 by this final rule, including revisions to the scope of RPMs. However, it is beyond the scope of this rule to speculate whether that consultation would require RPMs with offsetting measures that are costly or otherwise.

Comment 17:
One commenter suggested a revision to the final sentence for “environmental baseline.” The commenter recommended changing “The impacts to listed species or designated critical habitat from Federal agency activities or existing Federal agency facilities that are not within the agency's discretion to modify are part of the environmental baseline.” to “The ongoing impacts to listed species or designated critical habitat from existing facilities or activities that are not caused by the proposed action or that are not within the Federal action agency's discretion to modify are part of the environmental baseline.”

Response:
The Services decline to accept the suggested edits to the third sentence of the “environmental baseline” definition. As we described in the proposed rule, the original sentence inadvertently caused confusion and a focus on the term “ongoing” instead of the Federal agency's discretion to modify their own facilities and activities. However, the commenter's suggested language would inadvertently include in the “environmental baseline” those facilities and activities that are caused by the proposed action if the Federal agency has no discretion to modify them. Further, the language suggested by the commenter could be read also to include all or portions of the very activities or facilities that are the subject of the proposed Federal action of funding or permitting. Both results would improperly limit the scope of the jeopardy or adverse modification analysis. The Services' definition clarifies that the past and present impacts of existing activities and facilities entirely unrelated to the Federal action in the action area would be in the “environmental baseline” whether they are Federal, State, private, or other human activities.

Section 402.16—Reinitiation of Consultation

As proposed, we are revising the text at § 402.16(a) by deleting the words “or by the Service” to clarify that the responsibility and obligation to reinitiate consultation lies with the

Federal agency that retains discretionary involvement or control over its action. The text at § 402.16(a) now reads: Reinitiation of consultation is required and shall be requested by the Federal agency, where discretionary Federal involvement or control over the action has been retained or is authorized by law and . . . This revision will not prevent the Services from notifying the Federal agency if we conclude that circumstances appear to warrant a reinitiation of consultation.

Comment 1:
Multiple commenters opposed the deletion of the phrase “or by the Service,” multiple other commenters supported the removal of “or by the Service,” and others noted that the Services are able to provide technical assistance to Federal action agencies when reinitiation is appropriate and requested that the regulations clarify the roles of the Services and action agencies in the “Reinitiation of Consultation” section (50 CFR 402.16(a)).

Response:
We are removing the language “or by the Service” because the sentence as written creates confusion as to the scope of the authorities and roles of the Services relative to the Federal action agency. As explained in our 2019 rule and 2023 proposed rule, only the Federal action agency has the authority and responsibility to initiate or reinitiate consultation when warranted. The Services do not have the power to order other agencies to initiate or reinitiate consultation (
Sierra Club
v.
Marsh,
816 F.2d 1376, 1386 (9th Cir. 1987);
Defs. of Wildlife
v.
Flowers,
414 F.3d 1066, 1070 (9th Cir. 2005); 51 FR 19949, June 3, 1986); instead, we are able to recommend that the Federal action agency reinitiate consultation. Because the act of reinitiating consultation is solely the responsibility of the Federal action agency, removing “or by the Service” in this portion of the regulations clarifies that responsibility. As noted in the 2023 proposed rule, the Services may still notify the Federal agency if circumstances warrant a reinitiation of consultation. The Services conclude that no additional regulatory language is needed to address this ability.

Comment 2:
Two commenters suggested that it would be appropriate to delete § 402.16(b): One believes that the regulations in that paragraph exceed the Services' authority to choose when to reinitiate, and the other believes that identifying only these exceptions is arbitrary. Both stated that § 402.16(b) is “bad conservation policy.”

Response:
Section 402.16(b) was added in the 2019 rule to address issues arising under
Cottonwood Environmental Law Center
v.
U.S. Forest Service,
789 F.3d 1075 (9th Cir. 2015), and to comport with the Wildfire Suppression Funding and Forest Management Activities Act, H.R. 1625, Division O, which was included in the Omnibus Appropriations bill for fiscal year 2018. The 2018 statute exempted land management plans prepared pursuant to the Federal Land Policy Management Act (FLPMA), 43 U.S.C. 1701
et seq.,
and the National Forest Management Act (NFMA), 16 U.S.C. 1600
et seq.,
from reinitiation of consultation when a new species is listed or new critical habitat is designated provided that any authorized actions under the plan that may affect listed species or critical habitat are subject to their own site-specific consultations. We respectfully disagree that § 402.16(b) is “bad conservation policy” because the regulations in that paragraph allow the Services to focus our limited resources on those site-specific actions that may cause effects to listed species and designated critical habitat. As we noted in the 2019 rule, the Bureau of Land Management and the U.S. Forest Service (USFS) are required to periodically update their land management plans, at which time they would consult on any newly listed species or critical habitat.

Comment 3:
One commenter recommended that reinitiation of consultation because of a new species listing or critical habitat designation be limited to that species or critical habitat, unless one of the other conditions for triggering reinitiation has been met.

Response:
Informal or formal consultations that are reinitiated on the basis that the action may affect newly listed species or newly designated critical habitat are, in fact, limited to evaluating the effects of the action on that species or critical habitat, unless another regulatory condition requiring reinitiation applies.

Comment 4:
The Services received several comments urging us to make changes to the 2019 regulatory revision clarifying that the duty to reinitiate consultation does not apply to certain existing programmatic land management plans prepared pursuant to the FLPMA or the NFMA when a new species is listed or new critical habitat is designated that may be affected by the plan. Some of the comments maintained that the revision exceeded our authority under the Act and did not support the conservation purposes of the Act.

Response:
The Services decline to make changes to the 2019 regulatory revision exempting certain land management plans from the requirement to reinitiate consultation. The 2019 regulatory revision essentially incorporates the exemption (and the statutory conditions for applying that exemption) enacted by Congress in the 2018 Wildfire Suppression Funding and Forest Management Activities Act as part of the 2018 Omnibus Appropriations Act. Although the 2019 regulatory revision extended the exemption to land management plans issued under FLPMA, which were not addressed in the 2018 Omnibus Appropriations Act, the Services disagree that we lack authority to exempt these plans from the reinitiation requirement established by our regulations, not by statute. Because our regulations clarify that the exemption applies only if any action taken under a FLPMA or NFMA land management plan that may affect a newly listed species or newly designated critical habitat can be evaluated in a separate section 7 consultation, we find that this regulatory provision is consistent with ESA section 7 and the overarching conservation purposes of the ESA.

Section 402.17—Other Provisions

As proposed, in this final rule, we are removing § 402.17 in its entirety. This regulatory revision simplifies the regulations and eliminates the need for any reader to consult multiple sections of the regulations to discern what is considered an “effect of the action.” The previously articulated basis for § 402.17 will be addressed in an updated Consultation Handbook.

Comment 1:
Several commenters disagreed with removal of § 402.17. They supported retaining the requirement that for an activity or consequence to be considered reasonably certain to occur it “must be based on clear and substantial information.” The commenters asserted that removing § 402.17 would lead to less clarity and more confusion.

Response:
In the proposed rule, the Services articulated several reasons why removing § 402.17 is preferable, including unnecessary confusion and regulatory complexity and potential inconsistency with the statutory requirement to use “the best scientific and commercial data available.”. These reasons adequately explain why removal of § 402.17 is warranted. First, removing § 402.17 simplifies the structural complexity of the “effects of the action” definition. Currently, the term “effects of action” is defined in § 402.02, but that definition cross-references § 402.17. Removing § 402.17 would make the “effects of the action” definition self-contained within

§ 402.02 without requiring reference to a separate regulatory provision.

Second, section 7(a)(2) of the Act requires both the Federal action agencies and the Services to use “the best scientific and commercial data available.” This requirement applies to all aspects of section 7(a)(2), including determining what activities or consequences are considered reasonably certain to occur when analyzing the “effects of the action” and any “cumulative effects.” The requirement that such analysis must also be based on “clear and substantial information” creates an additional standard that could be read to limit what “best scientific and commercial data available” the Services may consider. Rather than focusing on the “best available” data, the “clear and substantial information” requirement would appear to circumscribe that data to only that which meets those heightened requirements.

Third, when read in combination with the preamble discussion in the 2019 final rule that emphasized a need for a “degree of certitude” in determining effects of the action that are reasonably certain to occur, § 402.17 could be construed as narrowing the scope of what constitutes the “best available scientific and commercial data.” In other words, in light of the “degree of certitude” discussion in the preamble of the 2019 rule, § 402.17's “clear and substantial information” standard could be read to suggest that even if particular data were considered the best available, they potentially should not be relied upon if they lacked a heightened degree of certitude. The best available data will not always be free of uncertainty and often may be qualitative in nature, and, under the requirements of section 7(a)(2), are to be used by the Services in fulfilling their consultative role under the Act. For these reasons and also as discussed further below, we are removing 50 CFR 402.17 from the section 7 regulations.

Comment 2:
Some commenters supported removing § 402.17, particularly the “clear and substantial information” standard, asserting that it conflicts with the statute, including the “best scientific and commercial data available” requirement, and inappropriately limits the effects analysis.

Response:
The Services agree that removing § 402.17 is appropriate for the reasons discussed in this final rule.

Comment 3:
Some commenters asserted the Services had not adequately explained how § 402.17 creates the potential for confusion.

Response:
The Services' response above and in the preamble of our proposed rule (88 FR 40753, June 22, 2023) explains why § 402.17 has the potential to create confusion. As explained, § 402.17 creates potentially competing requirements between its “clear and substantial information” standard and the statutory requirement to use the best scientific and commercial data available. Such competing mandates necessarily contribute to confusion on the part of agencies and applicants who are forced to reconcile them in carrying out their obligations under section 7(a)(2). Additionally, as discussed more fully below, the factors identified in § 402.17, particularly § 402.17(b), are circular in nature, making them potentially unhelpful or confusing as to when an activity is or is not reasonably certain to occur.

Comment 4:
As mentioned above, several commenters asserted that the recent
MLA
decision, weighs against the Services removing § 402.17 from the section 7 regulations. They contend that the decision supports the following: the notion that effects must be “likely” to occur, the requirement of “clear and substantial information,” and limitations on engaging in speculation. They also asserted that the Services should look to the
MLA
decision for direction in any guidance documents the Services develop.

Response:
For the reasons discussed above, the
MLA
decision does not undermine the Services' decision to remove § 402.17. To the extent the
MLA
decision raises questions about how the Services resolve uncertainty, the Services reiterate that we will continue to follow accepted scientific methods and evaluate all lines of best available evidence to arrive at principled scientific determinations, including as to what consequences are or are not reasonably certain to occur. This is our longstanding approach to performing the section 7(a)(2) inquiry, and the
MLA
court did not reject this approach. The narrow adverse holding of
MLA
did not speak to the Services' ability to remove § 402.17 from the section 7 regulations for all the reasons stated in the preamble. As with other court decisions, the Services will give appropriate consideration to
MLA
as applicable when developing future guidance.

Comment 5:
Some commenters asserted that removing § 402.17 and the requirement of “clear and substantial information” is inconsistent with the Act and the best available science standard and would be problematic for consultations that involve assumptions and projections in areas of scientific uncertainty.

Response:
As stated above, removing § 402.17 and the “clear and substantial information” standard does not change the fundamental “reasonably certain to occur” test, which will continue to be applied by the Services in our analyses, including those involving scientific uncertainty. Moreover, the 2019 rule specifically stated that the regulatory changes made in that rule were clarifications and did not “lower or raise the bar on section 7 consultations,” and did not “alter what is required or analyzed during a consultation.” 84 FR 44976 at 45015, August 27, 2019. While that was the intent of the 2019 rule, for the reasons discussed above, there are concerns that the “clear and substantial information” standard itself can cause confusion and could be read to be in tension with the Act's “best available scientific and commercial data” requirement. For all these reasons and as discussed throughout, removing § 402.17 is consistent with the Act.

Comment 6:
Some commenters urged the Services to retain the factors set forth in § 402.17(a) and (b), rather than address them in a future guidance document.

Response:
As stated in the proposed rule, the § 402.17(a) and (b) factors are a non-exclusive list of relevant considerations for determining whether an activity (§ 402.17(a)) or a consequence (§ 402.17(b)) is reasonably certain to occur. Because they are non-exclusive, general in nature, and read more as suggestions than regulatory requirements, they are more appropriately addressed in an update to the Services' Consultation Handbook than in regulatory text. A discussion in the updated Consultation Handbook will lend itself to a more appropriate treatment of these factors and their relevance to identifying activities and consequences that are reasonably certain to occur. Moreover, factors similar to those in § 402.17(a) are already set forth in the Services' original 1998 Consultation Handbook.
See
Services' 1998 Consultation Handbook at 4-32. And while the § 402.17(b) factors (remoteness in time, remoteness in geographic location, and lengthy causal chain) were not specifically discussed in the 1998 Consultation Handbook, the factors themselves are tautological or circular in nature,
i.e.,
each falls back on the concept of what is not reasonably certain to occur to satisfy the factor (
e.g.,
a consequence is too remote in time if it is not reasonably certain to occur). At the same time, this portion of § 402.17 has the potential to

create the misperception that the presence of any of the factors alone indicate that a consequence is not reasonably certain to occur, but the fact that a consequence may be remote in time, for instance, is not dispositive of whether it is not reasonably certain to occur. These potential problems with § 402.17(b) raise the question of whether the factors, in fact, provide much in the way of effective guidance. A more detailed discussion in the updated Consultation Handbook can remedy this potential deficiency.

An additional reason to remove the identified factors is how each set of factors is introduced in the regulatory text. For both § 402.17(a) and (b), they are described as factors to evaluate whether “activities” or “consequences” are “caused by the proposed action,” which is governed by the two-part test of “but for” causation and reasonably certain to occur. Yet the factors themselves speak only to what may be considered reasonably certain and ignore what may be relevant for evaluating the “but for” prong of the test. While this potential shortcoming might be addressed through further regulatory revision, we believe removal of § 402.17 is the preferred solution for all the reasons stated.

Comment 7:
Some commenters supported removing the factors set forth in § 402.17. They asserted that the factors like those found in § 402.17(b) are one-sided and lean only toward negating consideration of certain effects as opposed to also including factors that weigh in favor of considering effects. They assert that such an approach risks inappropriately limiting the effects analysis and species protections, which they consider at odds with the purpose of the ESA. They also question the utility of guidance that might repeat the identified deficiencies.

Response:
The Services agree that the removal of § 402.17 is advisable for the reasons stated elsewhere in this final rule. We will take into consideration the commenter's suggestion to potentially broaden the scope of any guidance on factors relevant to what activities or consequences are considered “reasonably certain to occur” in developing our updated Consultation Handbook.

Comment 8:
Some commenters recommended adding the factors listed in § 402.17(b) as part of the definition of “effects of the action.”

Response:
The Services respectfully decline this suggestion. For the reasons discussed above, we are removing the non-exclusive list of factors in § 402.17(b) from the regulations. Additionally, including these non-exclusive, general factors in the definition of “effects of the action” would add unnecessary complexity to the definition.

Comment 9:
Some commenters asserted that removing § 402.17 will lead to delays, increased costs for stakeholders, less efficient consultation processes, increased regulatory burdens, and inconsistent outcomes. They also assert that, without § 402.17, the Services would be free to presume consequences regardless of their likelihood or “degree of certitude.”

Response:
We respectfully disagree with the commenters. For the various reasons discussed in this preamble, the Services conclude that removing § 402.17 overall will be more consistent with the Act, resolve potential confusion, and remove regulatory text that is better addressed in an updated Consultation Handbook. As referenced in the preamble of the 2019 rule, the 2019 regulatory changes to the section 7 regulations did not lower or raise the bar on section 7 consultations or alter the scope of analysis. The fundamental test of “reasonably certain to occur” remains, which places limitations on the scope of our causation analysis and avoids speculation. To the extent that some commenters are suggesting that one may read § 402.17 to heighten the requirements for determining what activities or consequences are reasonably certain to occur, such heightened requirements (as discussed above) may well be inconsistent with the statutory mandate to use the “best scientific and commercial data available.” In particular, the agencies have a fundamental duty to “insure that any action authorized, funded, or carried out by [an action] agency is not likely to jeopardize the continued existence of a list species.” 16 U.S.C. 1536(a)(2). Unduly limiting the scope of “the best scientific and commercial data available” that an agency may consider could undermine the agency's duty to “insure”—
i.e.,
“to make certain,”
Home Builders,
551 U.S. at 667—that an action is not likely to jeopardize. Because the fundamental causation test remains, removal of the “clear and substantial information” standard will reduce, not increase, confusion. And, we expect the non-exclusive factors set forth in § 402.17 will be addressed and expanded upon in the updated Consultation Handbook. As a result, we do not anticipate removal of § 402.17 will lead to delays, increased costs or regulatory burdens for stakeholders, or less consistent outcomes.

Comment 10:
Some commenters expressed a preference for the factors identified in § 402.17(a) and (b) to be addressed in rulemaking rather than guidance. These commenters claimed that rulemaking affords the public with opportunities to comment and requires additional process to revise the regulatory text compared to non-binding guidance. One commenter also asserted the Services should not remove § 402.17 until after public comment on any updated draft Consultation Handbook. Commenters also expressed a concern about how long it will take the Services to issue any updated guidance.

Response:
The Services intend to provide an opportunity for public comment on any updated Consultation Handbook, which we anticipate making available after this final rule. Therefore, the public will have an opportunity to review and comment on guidance developed based on the factors identified in § 402.17. While any future Consultation Handbook is not expected to be binding, the non-exclusive, general nature of the factors found in § 402.17 make their regulatory effect to be of, at most, limited import. As for timing, the reasons discussed above explain why it is appropriate to remove § 402.17 now, including the factors of § 402.17(a) and (b). The Services therefore respectfully decline the request to delay their removal.

Comment 11:
One commenter opposed the 2019 rule's expansion of the “reasonably certain to occur” standard beyond indirect effects and relatedly urged the Services not to adopt guidance perpetuating the expansion. If guidance is necessary on an analytical framework for how to reasonably predict future effects, the commenter urged the Services to adopt an approach similar to the Department of the Interior Solicitor's M-Opinion (Department of the Interior, Office of the Solicitor, Opinion M-37021 (Jan. 16, 2009)) regarding the term “foreseeable future” in the context of species listing.

Response:
For the reasons discussed in the 2019 rule and elsewhere in this rule, we choose to keep our two-part causation test including “reasonably certain to occur” (which collapsed the concepts of direct effects, indirect effects, and interrelated and interdependent activities). Because we are keeping our two-part test, we expect to provide guidance in an updated Consultation Handbook on appropriate considerations. We will consider all credible sources, including the 2009 Solicitor M-Opinion, as we prepare helpful guidance on what is “reasonably certain to occur.”

Sections 402.02 and 402.14—Scope of RPMs

As proposed, we are revising the definition of “reasonable and prudent measures” to adhere more closely to the statute by replacing the term “believes” with “considers” and replacing the clause “impacts,
i.e.,
amount or extent, of incidental take” with “impact of the incidental take on the species.” The definition now reads: Reasonable and prudent measures refer to those actions the Director considers necessary or appropriate to minimize the impact of the incidental take on the species. We are also revising § 402.14(i)(1)(i) and (ii) to reflect the above change. To recognize that RPMs are not limited solely to reducing incidental take and may occur outside of the action area, we are also adding the following language to the end of § 402.14(i)(2): “and may include measures implemented inside or outside of the action area that avoid, reduce, or offset the impact of incidental take.” Further, we are adding to § 402.14 a new paragraph at (i)(3) to clarify that offsets within or outside the action area can be required to minimize the impact of incidental taking on the species: Priority should be given to developing reasonable and prudent measures and terms and conditions that avoid or reduce the amount or extent of incidental taking anticipated to occur within the action area. To the extent it is anticipated that the action will cause incidental take that cannot feasibly be avoided or reduced in the action area, the Services may set forth additional reasonable and prudent measures and terms and conditions that serve to minimize the impact of such taking on the species inside or outside the action area.

Comments were received on a variety of aspects of the above changes that expand the scope of RPMs but can be grouped under the following two general categories: authority and application.

Authority

Comment 1:
Some commenters contended that the Services' proposal allowing for the use of offsets as RPMs conflicts with the plain language of ESA section 7(b)(4)(C)(ii). Specifically, these commenters asserted that ESA section 7(b)(4)(C)(ii) requires RPMs to “minimize” the impacts of incidental take rather than to compensate for or eliminate those impacts through offsetting measures.

Response:
The Services disagree that the RPM regulatory revision conflicts with the plain language of ESA section 7(b)(4)(C)(ii), and, in fact, assert the opposite. As discussed more fully below, the plain language of section 7(b)(4)(C)(ii) supports the use of offsets as RPMs. The relevant language plainly states that RPMs are to include measures that minimize the impacts of incidental take, not incidental take itself. Like measures that avoid or reduce incidental take, offsetting measures also minimize the impacts of incidental take on the species.

Regarding these commenters' specific assertion that ESA section 7(b)(4)(C)(ii) used the term “minimize” rather than “eliminate” or “compensate for,” these commenters appear to view the use of “minimize” as reflecting congressional intent to preclude the Services from using offsets that minimize the impact of incidental taking to the degree that it is eliminated or compensated for. We note, however, that the ordinary meaning of “minimize” found in dictionary definitions does not refer to any specific quantum that may be reduced. Some definitions, in fact, indicate that the term means “[t]o reduce (esp. something unwanted or unpleasant) to the smallest possible amount, extent, or degree.”
Minimize,
Oxford English Dictionary,
https://www.oed.com/search/dictionary/?scope=Entries&q=minimize
(last accessed on October 26, 2023). The ESA, similarly, does not specify the extent to which impacts are to be minimized. Accordingly, offsets may minimize the impacts of incidental take on the species through measures that counterbalance the loss of individuals taken as a result of the action subject to consultation (
e.g.,
through restoration of habitat anticipated to result in the replacement of the individuals that were taken). Such offsetting measures must be proportional to the impact of incidental take that cannot be avoided or reduced, with the amount or extent of the taking (as described in the incidental take statement) representing the upper limit on the scale of any offsetting measures.

Comment 2:
Many commenters maintained that Congress intended offsetting measures to address impacts from incidental take under ESA section 10, not ESA section 7. ESA section 10(a)(2)(B)(ii) authorizes the Services to issue incidental take permits if, among other things, applicants' conservation plans “minimize and mitigate” impacts from incidental take. Because ESA section 7(b)(4)(C)(ii), unlike ESA section 10(a)(2)(B)(ii), specifies that RPMs are to “minimize” impacts of incidental take, these commenters asserted that Congress did not intend for RPMs to also “mitigate” impacts through offsetting measures. These commenters further argued that the proposal allowing for the use of offsets under ESA section 7 impermissibly conflated “minimize” with “mitigate.”

Response:
The Services disagree that the statutory criteria for issuing incidental take permits under ESA section 10 indicates that Congress intended to require mitigation from private applicants in the context of section 10, but specifically limited the use of such measures when addressing the
same
impacts in the context of section 7. The plain language of the ESA indicates that Congress considered the terms “minimize” and “mitigate” to have overlapping meaning when those terms were added as part of the 1982 ESA amendments.

In 1982, when Congress added the provisions for reasonable and prudent measures and ESA section 10 incidental take permits, Congress also revised the process by which a Federal agency, State, or applicant may seek an exemption from the requirement in ESA Section 7(a)(2) to ensure against the likelihood of jeopardy or adverse modification.
See
H.R. Rep. No. 97-56, at 28 (May 17, 1982) and S. Rep. No. 97-418, at 19 (May 26, 1982). Included in the amendments adopted by Congress were additional criteria to be considered by the Endangered Species Committee in granting an exemption.
See
16 U.S.C. 1536(h)(1) (ESA section 7(h)(1)). Specifically, these amendments provided that the Endangered Species Committee can issue an exemption if, among other things, it “establishes such reasonable
mitigation
and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to
minimize
the adverse effects of the agency action.” 16 U.S.C. 1536(h)(1)(B) (ESA section 7(h)(1)) (emphasis added). Thus, in the same section of the Act as the RPMs provision, Congress specifically described mitigation measures that offset adverse effects as measures that
minimize
such effects. This provision provides strong sup

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-06902. Public record. Not legal advice.