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Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
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 final rule, we have determined that there are currently no permitted conservation plans or other non-permitted conservation agreements or partnerships for the slenderclaw crayfish, and the final critical habitat designation does not include any Tribal lands or trust resources. We anticipate no impact on Tribal lands, partnerships, permitted or non-permitted plans, or agreements from this critical habitat designation. Accordingly, the Secretary is not exercising her discretion to exclude any areas from the final designation based on other relevant impacts.

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Effects of Critical Habitat Designation Section 7 Consultation Section 7a of the Act requires Federal agencies to evaluate their actions with respect to critical habitat of any species that is listed as an endangered or threatened species.
Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.
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 result in the destruction or adverse modification of designated critical habitat of any listed species. In addition, section 7a4 of the Act requires Federal agencies to confer with the Service on any agency action that is likely to result in the destruction or adverse modification of proposed critical habitat.
We published a final regulation with a revised definition of destruction or adverse modification on August 27, 2019 84 FR 45020. 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 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

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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.
Compliance with the requirements of section 7a2 of the Act is documented through our issuance of:
1 A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, critical habitat; or 2 A biological opinion for Federal actions that may affect, and are likely to adversely affect, critical habitat.
When we issue a biological opinion concluding that a project is likely to 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 destruction or adverse modification of critical habitat. We define reasonable and prudent alternatives 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 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
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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.
Application of the 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 Services may find are likely to destroy or adversely modify critical habitat, during a consultation under section 7a2 of the Act, 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, and water withdrawal. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the slenderclaw crayfish by decreasing or altering seasonal flows to levels that would adversely affect the species ability to complete its life cycle.
2 Actions that would significantly alter water chemistry or quality. Such activities could include, but are not limited to, release of chemicals including pharmaceuticals, metals, and salts or biological pollutants into the surface water or connected groundwater at a point source or by dispersed release non-point source. These activities could alter water conditions to levels that are beyond the tolerances of the slenderclaw crayfish and result in direct
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