50 CFR Part 402 - INTERAGENCY COOPERATION - ENDANGERED SPECIES ACT OF 1973, AS AMENDED

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively referred to as the “Services” or “we,” revise a regulatory definition that is integral to our implementation of the Endangered Species Act of 1973, as amended (Act or ESA). The Act requires Federal agencies, in consultation with and with the assistance of the Services, to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. On May 12, 2014, we proposed to revise the definition for “destruction or adverse modification” in our regulations as this definition had been found to be invalid by two circuit courts. In response to public comments received on our proposed rule, we have made minor revisions to the definition. This rule responds to section 6 of Executive Order 13563 (January 18, 2011), which directs agencies to analyze their existing regulations and, among other things, modify or streamline them in accordance with what has been learned.

We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services), are amending the incidental take statement provisions of the implementing regulations for section 7 of the Endangered Species Act of 1973, as amended (ESA). The two primary purposes of the amendments are to address the use of surrogates to express the amount or extent of anticipated incidental take and to refine the basis for development of incidental take statements for programmatic actions. These changes are intended to improve the clarity and effectiveness of incidental take statements. The Services believe these regulatory changes are a reasonable exercise of their discretion in interpreting particularly challenging aspects of section 7 of the ESA related to incidental take statements.

We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”), announce the extension of the public comment periods on our May 12, 2014, proposals to revise definitions and regulations regarding critical habitat. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of each final rule.

We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”) propose to amend our regulations, which implements the Endangered Species Act of 1973, as amended (Act). Our regulation establishes the procedural regulations governing interagency cooperation under section 7 of the Act. The Act requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. In 1986, the Services established a definition for “destruction or adverse modification” (§ 402.02) that was found to be invalid by the U.S. Court of Appeals for the Fifth (2001) and Ninth (2004) Circuits. We propose to amend our regulations to replace the invalidated definition with one that is consistent with the Act and the circuit court opinions. Finally, the proposed amendment is part of the Services' response to Section 6 of Executive Order 13563 (January 18, 2011), which directs agencies to analyze their existing regulations and, among other things, modify or streamline them in accordance with what has been learned.

We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services), propose to amend the regulations governing consultation under section 7 of the Endangered Species Act of 1973, as amended (ESA), regarding incidental take statements. The purpose of the proposed changes is to address the use of surrogates to express the amount or extent of anticipated incidental take, and incidental take statements for programmatic actions where implementation of the program requires later authorization, funding, or implementation of site-specific actions that will be subject to section 7 consultation and incidental take statements, as appropriate. These changes are proposed to improve the flexibility and clarify the development of incidental take statements. The Services believe these proposed regulatory changes are a reasonable exercise of their discretion in interpreting particularly challenging aspects of section 7 of the ESA related to incidental take statements.

We, the U.S. Fish and Wildlife Service (Service), extend the deadline for submission of public comments to help us identify potential changes to our regulations that implement parts of the Endangered Species Act that would create incentives for landowners and others to take voluntary conservation actions to benefit species that may be likely to become threatened or endangered species. In particular, we seek comment on whether and how the Service can assure those who take such voluntary actions that the benefits of their actions will be recognized as offsetting the adverse effects of activities carried out after listing by that landowner or others. The practice of recognizing these actions, sometimes referred to as “advance mitigation” or “prelisting mitigation,” is intended to encourage early conservation efforts that could reduce or eliminate the need to list species as endangered or threatened. If you have previously submitted comments, please do not resubmit them, because we have already incorporated them into the public record and will fully consider them as we decide how we may propose changes to our regulations or policies.