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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 other 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plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts opinions or personal knowledge.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 HCPs, or other species conservation planning efforts if new information available at
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the time of these planning efforts calls for a different outcome.
On August 27, 2019, we published a final rule in the Federal Register 84 FR
45020 to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on September 26, 2019, but, as stated in under DATES in that rule, the amendments it sets forth apply to rules for which a proposed rule was published after September 26, 2019.
We published our proposed critical habitat designations for the Carolina madtom and Neuse River waterdog on May 22, 2019 84 FR 23644; therefore, the amendments set forth in the August 27, 2019, final rule at 84 FR 45020 do not apply to this final designation of critical habitat for the Carolina madtom and Neuse River waterdog.
Prudency Determination While the implementing regulations 50 CFR 424.12 of section 4a3 of the Act, as amended, have recently been amended, the proposed rule that led to this final rule published before the new regulations were implemented;
therefore, we are operating under the older implementing regulations that require that the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species to the maximum extent prudent and determinable. Our regulations 50 CFR
424.12a1 state that the designation of critical habitat is not prudent when one or both of the following situations exist:
1 The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or 2 Such designation of critical habitat would not be beneficial to the species.
In determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species habitat or range is not a threat to the species, or whether any areas meet the definition of critical habitat.
In our SSA report and the proposed listing determination for the Carolina madtom and Neuse River waterdog, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to both the Carolina madtom and Neuse River waterdog and that those threats in some way can be addressed by section 7a2 consultation measures.
Accordingly, such a designation could
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be beneficial to the species. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR
424.12a1 has been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the Carolina madtom and the Neuse River waterdog.
Critical Habitat Determinability Having determined that designation is prudent, under section 4a3 of the Act we must find whether critical habitat for the Carolina madtom and Neuse River waterdog is determinable. Our regulations at 50 CFR 424.12a2 state that critical habitat is not determinable when one or both of the following situations exist:
i Data sufficient to perform required analyses are lacking, or ii The biological needs of the species are not sufficiently well known to identify any area that meets the definition of critical habitat.
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation 16 U.S.C.
1533b6Cii.
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where both species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Carolina madtom and Neuse River waterdog.
Physical or Biological Features Essential to the Conservation of the Species In accordance with section 35Ai of the Act and regulations at 50 CFR
424.12b, in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 were amended after the publication of the May 22, 2019, proposed rule; see 84 FR
45020 August 27, 2019. For this rule, we define physical or biological features essential to the conservation of the species as the features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation,
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