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Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Proposed Rules
within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features 1 which are essential to the conservation of the species and 2 which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species such as space, food, cover, and protected habitat. In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A
feature may be a single habitat characteristic or a more complex combination of habitat characteristics.
Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Acts definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available.
Further, our Policy on Information Standards Under the Endangered Species Act published in the Federal Register on July 1, 1994 59 FR 34271, the Information Quality Act section 515
of the Treasury and General Government Appropriations Act for
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Fiscal Year 2001 Pub. L. 106554; H.R.
5658, and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA
report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: 1
Conservation actions implemented under section 7a1 of the Act; 2
regulatory protections afforded by the requirement in section 7a2 of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and 3 the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species.
Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other
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species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Prudency Determination Section 4a3 of the Act, as amended, and implementing regulations 50 CFR 424.12 require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations 50 CFR 424.12a1 state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:
i The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
ii The present or threatened destruction, modification, or curtailment of a species habitat or range is not a threat to the species, or threats to the species habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7a2 of the Act;
iii Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
iv No areas meet the definition of critical habitat; or v The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
As discussed earlier in this document, there is currently no imminent threat of collection or vandalism identified under Factor B for either the Northern DPS or the Southern DPS of the lesser prairiechicken, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA report and proposed listing determination for both the Northern and Southern DPSs, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the two DPSs and that the threat in some way can be addressed by section 7a2
consultation measures. The two DPSs occur wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12a1 have been met and because there are no other circumstances the Secretary has
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