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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
disturbance, fragmentation, and destruction at the stand scale, homerange scale, and landscape scale from vegetation management activities through the use of conservation measures; 3 preventing, locating, and remediating trespass marijuana grow sites and other sources of toxicants; and 4 improving the efficacy of existing road-crossing structures and installing new wildlife road crossings on major roadways. Federal lands in this unit are managed under the Sierra Nevada Forest Plan Amendment USFS 2004, entire and the Yosemite National Park General Management Plan NPS 1980, entire.
Effects of Critical Habitat Designation
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Section 7

Consultation
Section 7a2 of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7a4 of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 84 FR
44976. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency action agency must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act 33
U.S.C. 1251 et seq. or a permit from the Service under section 10 of the Act or that involve some other Federal action such as funding from the Federal Highway Administration, Federal Aviation Administration, or Federal Emergency Management Agency.
Federal actions not affecting listed species or critical habitatand actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal
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agencydo not require section 7
consultation.
Compliance with the requirements of section 7a2 is documented through our issuance of:
1 A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or 2 A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define reasonable and prudent alternatives at 50 CFR
402.02 as alternative actions identified during consultation that:
1 Can be implemented in a manner consistent with the intended purpose of the action, 2 Can be implemented consistent with the scope of the Federal agencys legal authority and jurisdiction, 3 Are economically and technologically feasible, and 4 Would, in the Service Directors opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action or the agencys discretionary involvement or control is authorized by law and, subsequent to the previous consultation: 1 If the amount or extent of taking specified in the incidental take statement is exceeded; 2 if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; 3 if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the
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biological opinion; or 4 if a new species is listed or critical habitat designated that may be affected by the identified action.
In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the 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, consider likely to destroy or adversely modify the critical habitat of the SSN DPS of fisher include, but are not limited to:
1 Actions that would significantly alter the configuration, quality, or availability of denning habitats. Such activities are large-scale activities as opposed to small, individual projects that appreciably diminish the conservation value of the entire critical habitat designation. Actions could include, but are not limited to, vegetation management activities such as fuels reduction and timber harvest operations and residential and commercial development. These activities could reduce the amount and quality of habitat necessary for the survival and reproduction of fishers.
2 Actions that would significantly diminish foraging opportunities. Such activities include, but are not limited to, the same types of large-scale activities listed in 1, above. These activities would eliminate or reduce the habitat
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