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Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Proposed Rules
critical habitat for the pearl darter are also already subject to section 7
consultation due to the presence of other listed species with similar habitat requirements and designated critical habitat. Additionally, activities that may affect pearl darter critical habitat in Unit 2 generally implement project modification recommendations from a standardized set provided in the Mississippi Standard Local Operations Procedures for Endangered Species SLOPES agreement. Through this agreement, enacted in June 2017, the U.S. Army Corps of Engineers COE
and the Service have established routine procedures for jointly implementing section 7 requirements for all projects that require COE permits. The agreement requires the COE to consult species-specific SLOPES documents to determine if a project is expected to adversely affect the species or its habitat. As part of the agreement, species-specific avoidance and minimization measures have been established for COE projects. The measures described for the pearl darter are similar to the measures described for overlapping species and because the COE addresses permitting for projects with water impacts, all projects with a Federal nexus in the proposed pearl darter critical habitat are likely to follow the Mississippi SLOPES procedures and recommendations. Therefore, even absent critical habitat designation, these activities are likely to avoid adverse effects on the habitat.
We are soliciting data and comments from the public on the DEA discussed above, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA
and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4b2 and our implementing regulations at 50 CFR 17.90. If we receive credible information regarding the existence of a meaningful economic impact or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also otherwise decide to exercise the discretion to evaluate any particular areas for possible exclusion. In addition, if we do conduct an exclusion analysis and we have received any information from experts in, or sources with firsthand knowledge about, impacts of the designation that are outside the
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scope of the Services expertise, for purposes of the exclusion analysis we will assign weights to those impacts consistent with the information from experts in, or sources with firsthand knowledge about, those impacts, unless we have rebutting information. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
Consideration of National Security Impacts Section 4a3Bi of the Act may not cover all DoD lands or areas that pose potential national-security concerns e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered. If a particular area is not covered under section 4a3Bi, national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of critical habitat. Nevertheless, when designating critical habitat under section 4b2, the Service must consider impacts on national security, including homeland security, on lands or areas not covered by section 4a3Bi. Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security DHS, or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns.
We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, it must provide credible information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat.
That justification could include demonstration of probable impacts, such as impacts to ongoing bordersecurity patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7a2 of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific
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justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: 1 Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; 2 the importance of those implications; and 3 the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4b2 exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
In preparing this proposal, we determined that the lands within the proposed designation of critical habitat for the pearl darter are not owned, managed, or used by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security. However, during the development of a final designation we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether to undertake the discretionary analysis to determine whether to exclude any specific areas from the final critical habitat designation under authority of section 4b2 and our implementing regulations at 50 CFR 17.90.
Consideration of Other Relevant Impacts Under section 4b2 of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements SHAs, or candidate conservation agreements with assurances CCAAs, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities.
We also consider any social impacts that might occur because of the designation.
In preparing this proposal, we determined that there are currently no HCPs or other management plans for pearl darter, and the proposed designation does not include any Tribal lands or trust resources. We anticipate no impact on Tribal lands, partnerships,
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