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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules Forest Service allotment to grazing, and feral hog management.
Effects of Critical Habitat Designation 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 that 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 the Federal Emergency Management Agency.
Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded or authorized, do 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
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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, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. 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.

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 Services 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 Management of the Ski Apache Resort to include maintaining ski runs or recreational paths that are clear of trees, maintaining existing roads through grading, and maintaining facilities that include structures and features for ski lifts, the gondola, and zip line;
2 Forest management activities, including timber harvest, prescribed fire, etc.;
3 Road maintenance activities; and 4 Recreation site maintenance and development of new sites, including trails.

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
Consideration of Impacts Under Section 4b2 of the Act
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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 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.

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
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