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Federal Register / Vol. 86, No. 214 / Tuesday, November 9, 2021 / Proposed Rules action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species habitat that may require conference, consultation, or both, as described in the preceding paragraph, may include, but are not limited to, management and any other landscapealtering activities on Federal lands administered by the U.S. Fish and Wildlife Service; U.S. Forest Service;
NPS; Department of Transportation construction and maintenance of roads or highways by the Federal Highway Administration and railroads by the Federal Railroad Administration;
National Aeronautics and Space Administration; Department of Defense DOD, including issuance of section 404 Clean Water Act permits by the U.S.
Army Corps of Engineers; and Federal Energy Regulatory Commission dams that produce hydropower.
It is our policy, as published in the Federal Register on July 1, 1994 59 FR
34272, to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under the Acts section 4d complies with our policy.
II. Proposed Rule Issued Under Section 4d of the Act
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Background Section 4d of the Act contains two sentences. The first sentence states in part that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like necessary and advisable demonstrates a large degree of deference to the agency see Webster v. Doe, 486 U.S. 592
1988. Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4d of the Act states in part that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9a1, in the case of fish or wildlife, or section 9a2, in the case of plants. Thus, the
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combination of the two sentences of section 4d provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretarys discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4d as a valid exercise of agency authority where they prohibited take of threatened wildlife or include a limited taking prohibition see Alsea Valley Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 D. Or. 2007;
Washington Environmental Council v.
National Marine Fisheries Service, 2002
U.S. Dist. Lexis 5432 W.D. Wash.
2002. Courts have also upheld 4d rules that do not address all of the threats a species faces see State of Louisiana v. Verity, 853 F.2d 322 5th Cir. 1988. As noted in the legislative history when the Act was initially enacted, once an animal is on the threatened list, the Secretary has an almost infinite number of options available to her with regard to the permitted activities for those species.
She may, for example, permit taking, but not importation of such species, or she may choose to forbid both taking and importation but allow the transportation of such species H.R.
Rep. No. 412, 93rd Cong., 1st Sess.
1973.
Exercising this authority under section 4d, we have developed a proposed rule that is designed to address the alligator snapping turtles conservation needs. Although the statute does not require us to make a necessary and advisable finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4d of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the alligator snapping turtle. As discussed above under Summary of Biological Status and Threats, we have concluded that the alligator snapping turtle is likely to become in danger of extinction within the foreseeable future primarily due to harvest/collection, nest predation, habitat alteration, and bycatch hook ingestion, entanglement, and drowning associated with commercial and recreational fishing.

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The provisions of this proposed 4d rule would promote conservation of the alligator snapping turtle by prohibiting harvest and encouraging implementation of best management practices for activities in freshwater wetlands and riparian areas to minimize habitat alteration to the maximum extent practicable. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the alligator snapping turtle. This proposed 4d rule would apply only if and when we make final the listing of the alligator snapping turtle as a threatened species.
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 which is likely to jeopardize the continued existence of any species proposed to be listed under the Act.
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 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.
This obligation to confer on species proposed to be listed or engage in consultation with the Service on actions that may affect listed species or their critical habitat does not change in any way for a threatened species with a species-specific 4d rule. Actions that result in a determination by a Federal agency of not likely to adversely affect continue to require the Services written concurrence and actions that are likely to adversely affect a species require formal consultation and the formulation of a biological opinion.

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