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Federal Register / Vol. 86, No. 41 / Thursday, March 4, 2021 / Proposed Rules requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.
Application of the Destruction or Adverse Modification Standard The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4b8 of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7a2 of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that the Service may, during a consultation under section 7a2 of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to:
1 Actions that would alter the hydrology of the cienega. Such activities could include, but are not limited to, springflow diversion, springhead modification, groundwater withdrawal, and physical alteration of the cienega.
These activities could change the hydrological processes of the cienega, reducing or eliminating habitat for the Arizona eryngo.
2 Actions that promote the growth of nonnative plant species and canopy cover. Such actions include, but are not limited to, planting of nonnative plant species and woody vegetation, and seed spread through livestock and tire treads.
These activities could reduce or eliminate habitat for the Arizona eryngo.
3 Actions that result in further fragmentation of Arizona eryngo habitat.
Such actions include, but are not limited to, fuel breaks, roads, and trails.
These activities could reduce or eliminate habitat for the Arizona eryngo.
Exemptions Application of Section 4a3 of the Act Section 4a3Bi of the Act 16
U.S.C. 1533a3Bi provides that the Secretary shall not designate as critical habitat any lands or other geographical
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areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan INRMP prepared under section 101 of the Sikes Act 16
U.S.C. 670a, if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.
There are no Department of Defense DoD lands with a completed INRMP
within the proposed critical habitat designation.
Consideration of Exclusions Under Section 4b2 of the Act Section 4b2 of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.
The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factors to use and how much weight to give to any factor.
We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
Consideration of Economic Impacts Section 4b2 of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical
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habitat designation is analyzed by comparing scenarios both with critical habitat and without critical habitat.
The without critical habitat scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat e.g., under the Federal listing as well as other Federal, State, and local regulations. The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated. The with critical habitat scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4b2 exclusion analysis.
For this particular designation, we developed an incremental effects memorandum IEM considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Arizona eryngo IEc 2020, entire. We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs i.e., absent critical habitat designation and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus
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