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Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Proposed Rules invertebrate community within those habitats.
Such activities could include, but are not limited to, incompatible livestock grazing, the application of herbicides or insecticides, and seeding of nonnative plant species that would compete with native vegetation for water, nutrients, and space; and actions that would result in lesser prairie-chicken avoidance of an area during one or more seasonal periods. Such activities could include, but are not limited to, the construction of vertical structures such as power lines, communication towers, buildings, infrastructure to support energy development, roads, and other anthropogenic features; motorized and nonmotorized recreational use; and activities such as well drilling, operation, and maintenance, which would entail significant human presence, noise, and infrastructure; and actions, intentional or otherwise, that would result in the destruction of eggs or active nests or cause mortality or injury to chicks, juveniles, or adult lesser prairie-chickens. Regulating these activities would slow the rate of habitat loss, fragmentation, and degradation and decrease synergistic, negative effects from other threats.
Under the Act, take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50
CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally.
Regulating take would help slow the rate of habitat loss, fragmentation, and degradation and decrease synergistic, negative effects from other threats.
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and
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distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6c of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the Northern DPS of the lesser prairie-chicken that may result in otherwise prohibited take without additional authorization.
Nothing in this proposed 4d rule would change in any way the recovery planning provisions of section 4f of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the Northern DPS of the lesser prairiechicken. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4d rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4d rule see Information Requested, above.
III. Critical Habitat Background Critical habitat is defined in section 3
of the Act as:
1 The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features a Essential to the conservation of the species, and b Which may require special management considerations or protection; and 2 Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are
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essential for the conservation of the species.
Our regulations at 50 CFR 424.02
define the geographical area occupied by the species as an area that may generally be delineated around species occurrences, as determined by the Secretary i.e., range. Such areas may include those areas used throughout all or part of the species life cycle, even if not used on a regular basis e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners.
Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7a2 of the Act.
However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Acts definition of critical habitat, areas
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