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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
begins upstream of SR1142
Weyerhaeuser Road to the confluence with the Trent River. The riparian areas on either side of the river are privately owned. This unit contains all of the physical or biological features essential for the conservation of the species.
Special management considerations or protection may be required to address excess sediment and pollutants that enter the river and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Special management focused on use of agricultural and forestry BMPs, implementation of highest levels of treatment of wastewater practicable, maintenance of forested buffers, and connection of protected riparian corridors will benefit habitat for the species in this unit.
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.
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 habitatand actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agencydo not require section 7
consultation.
As a result of section 7 consultation, we generally document compliance
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with the requirements of section 7a2
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 consultation on previously reviewed actions in several instances, including where we have listed a new species or subsequently designated critical habitat that may be affected, and the Federal agency has retained discretionary involvement or control over the action or the agencys discretionary involvement or control is authorized by law. Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

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Application of the Adverse Modification Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of the Carolina madtom or Neuse River waterdog. 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, find are likely to destroy or adversely modify critical habitat include, but are not limited to:
1 Actions that would alter the minimum flow or the existing flow regime. Such activities could include, but are not limited to, impoundment, channelization, water diversion, water withdrawal, and hydropower generation. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Carolina madtom and Neuse River waterdog by decreasing or altering flows to levels that would adversely affect the species abilities to complete their life cycles.
2 Actions that would significantly alter water chemistry or temperature.
Such activities could include, but are not limited to, release of chemicals including pharmaceuticals, metals, and salts, biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release nonpoint source. These activities could alter water conditions to levels that are beyond the tolerances of Carolina madtoms and Neuse River waterdogs and result in direct or cumulative adverse effects to these individuals and their life cycles.
3 Actions that would significantly increase sediment deposition within the stream channel. Such activities could
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