Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 424</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2021-0107, FXES1111090FEDR-245-FF09E23000; Docket No. 240325-0088]</DEPDOC> <RIN>RIN 1018-BF95; 0648-BK47</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively, the “Services”), finalize revisions to portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended. The revisions to the regulations clarify, interpret, and implement portions of the Act concerning the procedures and criteria used for listing, reclassifying, and delisting species on the Lists of Endangered and Threatened Wildlife and Plants (Lists) and designating critical habitat. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective May 6, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Public comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available online at <E T="03">https://www.regulations.gov</E> in docket number FWS-HQ-ES-2021-0107. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Carey Galst, U.S. Fish and Wildlife Service, Division of Ecological Services, Branch of Listing Policy and Support Chief, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone 703-358-1954; or Angela Somma, National Marine Fisheries Service, Office of Protected Resources, Endangered Species Division Chief, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-427-8403. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The Secretaries of the Interior and Commerce (“Secretaries” or “Secretary”) share responsibilities for implementing most of the provisions of the Endangered Species Act of 1973, as amended (“ESA” or “the Act,” 16 U.S.C. 1531 <E T="03">et seq.</E> ), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated regulations that interpret aspects of the listing and critical habitat designation provisions of section 4 of the Act. These joint regulations, which are codified in the Code of Federal Regulations (CFR) at 50 CFR part 424, were most recently revised in 2019 (84 FR 45020, August 27, 2019; “the 2019 rule” or “the 2019 regulations”). Those revised regulations became effective on September 26, 2019. Executive Order 13990 (E.O. 13990), entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” was issued on January 20, 2021. E.O. 13990 directed all departments and agencies to immediately review agency actions taken between January 20, 2017, and January 20, 2021, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with important national objectives, including promoting and protecting our public health and the environment, and to immediately commence work to confront the climate crisis. A Fact Sheet that accompanied E.O. 13990 provided a non-exhaustive list of particular regulations requiring such a review and included the 2019 rule (see <E T="03">https://www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</E> ). In response to E.O. 13990 and litigation that ended with a court remand of the 2019 rule, the Services reviewed the 2019 rule and, on June 22, 2023, published a proposed rule to revise portions of the implementing regulations at 50 CFR part 424 (88 FR 40764) that had previously been revised by the 2019 rule. We solicited public comments on the June 22, 2023, proposed rule for 60 days, ending August 21, 2023. Section 2 of the Act states that the purposes of the Act include providing a means to conserve the ecosystems upon which endangered and threatened species depend, developing a program for the conservation of listed species, and achieving the purposes of certain treaties and conventions (16 U.S.C. 1531(b)). Section 2 of the Act also makes explicit that it is the policy of Congress that all Federal agencies and departments seek to conserve threatened and endangered species and use their authorities to further the purposes of the Act (16 U.S.C. 1531(c)). To determine whether listing a species is warranted, the Act requires that the Services conduct a review of the status of the species and consider any efforts being made by any State or foreign nation (or subdivision thereof) to protect the species. The Act also requires that determinations of whether a species meets the definition of an endangered or threatened species be based solely on the best scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)). Once species are listed, section 4(c)(2) of the Act requires us to conduct a review at least once every 5 years to determine whether the listed species should be removed from the Lists or changed in status, and section 4(f) of the Act requires that we develop and implement recovery plans for the conservation and survival of the listed species (unless a finding is made that such a plan would not promote the conservation of the species) (16 U.S.C. 1533(c)(2) and (f)). To the maximum extent practicable, recovery plans are required to provide certain elements, including objective, measurable criteria, which when met, would result in a determination that the species should be removed from the list. Section 4(a)(3)(A) of the Act requires the Services to designate critical habitat concurrent with the listing rule to the maximum extent prudent and determinable, or issue a final critical habitat rule within 1 year following a final listing rule if critical habitat was not initially determinable. 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 on which are found those physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection; and (2) specific areas outside the geographic area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)). The two parts of this definition for critical habitat depend on whether the species occupies an area or does not occupy an area at the time of listing. For simplicity, throughout this document we will refer to the former type of area as “occupied” critical habitat and the latter type as “unoccupied” critical habitat. In passing the Act, Congress viewed habitat loss as a significant factor contributing to species endangerment, and the “present or threatened destruction, modification, or curtailment” of a species' habitat or range is specifically enumerated in section 4(a)(1) of the Act as the first of the factors that may underlie a determination that a species meets the definition of an endangered or threatened species. The designation of critical habitat is a regulatory tool designed to further the conservation of a listed species, <E T="03">i.e.,</E> to help bring the endangered or threatened species to the point at which protections under the Act are no longer necessary. More broadly, designation of critical habitat also serves as a tool for meeting one of the Act's stated purposes: Providing a means for conserving the ecosystems upon which endangered and threatened species depend. Once critical habitat is designated, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to result in destruction or adverse modification of the critical habitat (16 U.S.C. 1536(a)(2)). In this final rule, we summarize and discuss the comments received in response to the proposed rule (88 FR 40764, June 22, 2023), and outline changes from the proposed rule based on our consideration of those comments and in light of the objectives of this rulemaking process to address concerns we had identified in the 2019 rule, the policies expressed in E.O. 13990, and our experience with implementing the Act. In the event any provision is invalidated or held to be impermissible as a result of a legal challenge, “the remainder of the regulation could function sensibly without the stricken provision.” <E T="03">Belmont Mun. Light Dep't</E> v. <E T="03">FERC,</E> 38 F.4th 173, 187 (D.C. Cir. 2022) (quoting <E T="03">MD/DC/DE Broad. Ass'n</E> v. <E T="03">FCC,</E> 236 F.3d 13, 22 (D.C. Cir. 2001)). Because each of the provisions stand on their own, the Services view each of the provisions as operating independently from the other provisions. Thus, should a reviewing court invalidate any particular provision(s) of this rulemaking, the remaining provisions would still allow the Services to classify species and designate their critical habitat. Specifically, thes ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 279k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━