Endangered and Threatened Wildlife and Plants; Revision of Regulations for Interagency Cooperation, 83 Fed. Reg. 35,178 (July 25, 2018); Docket No. FWS-HQES-2018-0009

Tuesday, September 25, 2018 - 9:45am

CH A M B E R O F CO M M E R C E
O F T H E
UN I T E D ST A T E S O F AM E R I C A

1615 H ST R E E T, NW WA S H I N G T O N, DC 20062 ( 2 0 2 ) 463-5310

September 24, 2018

VIA ELECTRONIC FILING

Mr. Craig Aubrey
U.S. Fish and Wildlife Service, Division of Environmental Review
U.S. Department of the Interior
5275 Leesburg Pike
Falls Church, VA

Ms. Cathy Tortorici
ESA Interagency Cooperation Division, Office of Protected Resources
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
1315 East-West Highway
Silver Spring, MD 20910

RE: Endangered and Threatened Wildlife and Plants; Revision of Regulations for
Interagency Cooperation, 83 Fed. Reg. 35,178 (July 25, 2018); Docket No. FWS-HQ-
ES-2018-0009

Dear Mr. Aubrey and Ms. Tortorici:

The U.S. Chamber of Commerce submits these comments in support of the Fish and
Wildlife Service’s (FWS) and National Marine Fisheries Service’s (NMFS) (collectively, the Services’)
proposed revisions to portions of those regulations that implement section 7 of the Endangered
Species Act of 1973 (ESA).1 The Chamber recognizes the need to protect species threatened with
extinction, but the Services must also avoid unnecessary impediments to land and natural resources
development. The Services can accomplish this balance by using sound science when establishing
endangered species protection.

1 Endangered and Threatened Wildlife and Plants; Revision of Regulations for Interagency Cooperation, 83 Fed. Reg.
35,178 (July 25, 2018).

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National Marine Fisheries Service
September 24, 2018
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I. Background

Congress enacted the ESA2 in 1973 to conserve the ecosystems upon which endangered and
threatened species depend, to provide a program for the conservation of endangered and threatened
species, and to achieve the purposes of certain treaties and conventions.3 The Federal Government
must seek to conserve threatened and endangered species and use its authorities to further the
purposes of the Act.4

The ESA “represented the most comprehensive legislation for the preservation of
endangered species ever enacted by any nation.”5 The distinct difference between endangered and
threatened species creates two separate levels of protection for plants, fish, and wildlife.6

On February 24, 2017, President Trump published Executive Order 13,777, “Enforcing the
Regulatory Reform Agenda,” which aimed to reduce the regulatory burden on citizens and facilitate
innovation and economic growth.7 The U.S. Department of the Interior (DOI) solicited comments
as to how it could “improve implementation of regulatory reform initiatives and policies and identify
regulations for repeal, replacement, or modification.”8 The National Oceanic and Atmospheric
Administration (NOAA) within the Department of Commerce (DOC) also solicited comments
from stakeholders on the same issue.9 Officials from DOI and the DOC then met with FWS and
NMFS officials in December 2017 to discuss improvements to the ESA, deciding to focus on
sections 4 and 7 of the Act.

Section 7 of the ESA addresses the requirements and procedures for federal interagency
cooperation and consultation.10 Section 7 requires that federal agencies, in consultation with and
2 The Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (ESA).
3 Id. at § 1531(b).
4 Id. at § 1531(c)(1).
5 Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).
6 Congress defined “endangered species” as any species of plant, fish or wildlife “which is in danger of extinction
throughout all or a significant portion of its range” (16 U.S.C. § 1532(6)), and defined “threatened species” as “any
species of plant, fish, or wildlife which is likely to become endangered species within the foreseeable future throughout
all or a significant portion of its range” (Id. at § 1532(20)).
7 Exec. Order 13,777, Enforcing the Regulatory Reform Agenda, 82 Fed. Reg. 12,285 (Mar. 1, 2017).
8 Regulatory Reform, 82 Fed. Reg. 28,429 (June 22, 2017).
9 Streamlining Regulatory Processes and Reducing Regulatory Burden, 82 Fed. Reg. 31,576 (July 7, 2017).
10 See 16 U.S.C. § 1536.

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National Marine Fisheries Service
September 24, 2018
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with the assistance of the Secretaries of the Interior and Commerce, “insure that any action
authorized, funded, or carried out by such agencies is 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.”11

The Services are now proposing to revise the regulations that implement section 7 of the
ESA.12 The proposed changes would not affect any previous consultations under section 7(a)(2).13
The revisions would address alternative consultation mechanisms, revise the definitions of
“destruction or adverse modification” and “effects of the action,” address certainty of mitigation
proposed by the Services; and otherwise improve the consultation process.

The Chamber supports the Services’ actions, and offers the following comments in an effort
to further improve the proposal. The Chamber believes that the Services’ proposed actions would
make interagency consultation more efficient and consistent, reduce overall consultation times and
cost, streamline the consultation process, and increase predictability and consistency for action
agencies and permittees. Furthermore, it would achieve these goals without compromising
conservation of listed species.

II. Definition of Destruction or Adverse Modification

The revised definition of “destruction or adverse modification” is a positive change. The
current regulatory text defines “destruction or adverse modification” as “a direct or indirect
alteration that appreciably diminishes the value of critical habitat for the conservation of a listed
species. Such alterations may include, but are not limited to, those that alter the physical or
biological features essential to the conservation of a species or that preclude or significantly delay
development of such features.”14 The Services propose to revise that definition to add the phrase
“as a whole” to the first sentence of the definition and remove the second sentence of the definition
in its entirety.15

Originally proposed in 1978 and updated in 1986, the Services have long relied on a
definition of that term that multiple U.S. courts of appeal have invalidated.16 In 2001, the U.S. Court
11 83 Fed. Reg. at 35,179.
12 See 50 C.F.R. § 402.
13 83 Fed. Reg. at 35,179.
14 50 C.F.R. § 402.02.
15 83 Fed. Reg. at 35,179.
16 See Interagency Cooperation-Endangered Species Act of 1973, as Amended; Final Rule, 51 Fed. Reg. 19,926 (June 3,
1986) (defining “destruction or adverse modification” as “a direct or indirect alteration that appreciably diminishes the
value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited

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National Marine Fisheries Service
September 24, 2018
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of Appeals for the Fifth Circuit found that the Services’ definition set too high a threshold for
triggering adverse modification.17 It found that the definition’s requirement that the value of critical
habitat for both survival and recovery be appreciably diminished before adverse modification would
be the appropriate conclusion was inconsistent with the ESA’s definition of conservation, which
“speaks to the recovery” of listed species.18

In 2004, the U.S. Court of Appeals for the Ninth Circuit likewise invalidated the regulation.19
It agreed with the Fifth Circuit’s decision, and noted that “Congress viewed conservation and
survival as ‘distinct, though complementary, goals and the requirement to preserve critical habitat is
designed to promote both conservation and survival.’”20

Following those decisions, the Services each issued guidance to discontinue the use of the
1986 definition and to apply the definition of “conservation” as set out in the Act.21 This resulted in
an analysis as to whether that action would result in the critical habitat remaining “functional (or
retain the current ability for the primary constituent elements to be functionally established) to serve
the intended conservation role for the species.”22

Ultimately, the Services promulgated and finalized the current definition of “destruction or
adverse modification.”23 This definition was not meant to affect the existing section 7 consultation
requirements. However, the second sentence of the definition attempted to elaborate upon the first,
rendering it vague, confusing, and unnecessary. The Services’ proposed action remedies that issue
and refrains from altering the current section 7 consultation process. It is not necessary to include
the confusing second sentence of the definition in the current regulatory text.

to, alterations adversely modifying any of those physical or biological features that were the basis for determining the
habitat to be critical”).
17 83 Fed. Reg. at 35,180 (citing Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)).
18 Id.
19 Id. (citing Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004)).
20 Id. (citing Gifford Pinchot Task Force, 378 F.3d at 1070).
21 83 Fed. Reg. at 35,180 (citing FWS Acting Director Marshall Jones Memorandum to Regional Directors, “Application
of the `Destruction or Adverse Modification' Standard under Section 7(a)(2) of the Endangered Species Act 2004;”
NMFS Assistant Administrator William T. Hogarth Memorandum to Regional Administrators, “Application of the
`Destruction or Adverse Modification' Standard under Section 7(a)(2) of the Endangered Species Act, 2005”).
22 Id.
23 Interagency Cooperation-Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse
Modification of Critical Habitat, 81 Fed. Reg. 7,214 (Feb. 11, 2016).

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National Marine Fisheries Service
September 24, 2018
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However, the Services could improve the proposal in a number of areas. For instance, the
Services should concurrently determine and disclose the “value of critical habitat for the
conservation of a species,” as it is important that the Services use an area’s conservation value to
inform a critical habitat designation and for evaluations of adverse modification.

The proposal makes multiple references to the Services’ joint Consultation Handbook when
referring to the definition of “destruction or adverse modification.”24 That document is nearly 20
years old, and should be updated. The Services should include sections of the updated handbook in
the regulatory language, to provide certainty for stakeholders. The Services should also clarify that
the regulations take precedent over the handbook whenever there is a conflict.

III. Consultation Procedures

The Services seek comment on modifications to 50 C.F.R. § 402.03 regarding circumstances
where Federal agencies are not required to consult under ESA section 7, including if the Federal
agency does not anticipate “take”25 and the proposed action would:

1) Not affect listed species or critical habitat;
2) Manifest effects through global processes that cannot be reliably predicted or measured at
the scale of a species range or would have only minor effects, or pose only remote risk; or
3) Have only beneficial effects or effects that cannot be measured in a manner that permits
meaningful evaluation.

The Chamber supports these proposals. The regulations should state explicitly that a
consultation is not required for actions that are not likely to adversely affect species. The
Consultation Handbook states this very condition, and then clarifies that this includes effects that
are “completely beneficial,” “insignificant,” or “discountable.” Therefore, the Services should clarify
the regulatory text in 50 C.F.R. sections 402.03 and 402.14(b)(1) to account for those effects that are
effects that are “completely beneficial,” “insignificant,” or “discountable.”

The Services should also use this proposal as an opportunity to further incorporate affected
states into the consultation process. The Act requires that each agency use the best scientific and
commercial data available when engaging in the section 7 consultation process.26 Affected states
often have better data than federal agencies for areas where the consultation process is taking place.
As the Western Governors’ Association (WGA) Policy Resolution 2017-11 states:

24 See 83 Fed. Reg. at 35,182-87.
25 A “take” is any action meant to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in any such conduct.” See 16 U.S.C. at § 1532(19).
26 See 16 U.S.C. § 1536.

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National Marine Fisheries Service
September 24, 2018
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State agencies often have the best available science, expertise and other scientific and
institutional resources such as mapping capabilities, biological inventories, biological
management goals, state wildlife action plans and other important data. This wealth
of resources is highly valuable; the federal government should recognize, consult,
and employ these vast resources in developing endangered species listing, recovery
and delisting decisions.27

DOI Secretary Ryan Zinke recently announced that DOI will begin to defer to state
hunting and fishing practices in many areas.28 As part of this process, DOI agencies must,
within 45 days, compile any “regulations, policies, or guidance that pertain to public
recreational use and enjoyment of fish and wildlife…that are more restrictive than otherwise
applicable State provisions” and then, within 90 days after that, recommend steps “to better
align its regulations, policies, and guidance with State provisions.”29 These actions reflect the
Department’s commitment to incorporating states into the consultation process.

The Chamber agrees with the WGA and DOI, and feels that increased consultation
and cooperation between affected states and federal agencies would undoubtedly bring
increased expertise, more feasible solutions, and better conservation outcomes to the
consultation process.

It is also important that a consultation be limited to the activities, areas, and effects
within the jurisdictional control and responsibility of the regulatory agency. Attempts to
usurp jurisdiction from another agency may lead to conflicting, burdensome, and
overlapping regulation. An agency should defer areas outside of their expertise to the agency
with jurisdiction, and the Services should amend the regulatory text to reflect that.30

27 Western Governors’ Association Policy Resolution 2017-11, Species Conservation and the Endangered Species Act, 6 available
at http://westgov.org/images/editor/2017-11_Species_Conservation_and_the_ES....
28 See News Editor, Zinke Cedes Federal Wildlife Protection to the States, Environment News Service (Sept. 11, 2018), available
at http://ens-newswire.com/2018/09/11/zinke-cedes-federal-wildlife-protecti....
29 Id.
30 See supra note 27.

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National Marine Fisheries Service
September 24, 2018
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IV. Conclusion

The Chamber appreciates the Services’ consideration of these comments and urges them to
act in an expeditious and thorough manner. If you have questions regarding these comments, please
contact me at (202) 463-5558 or at kharbert@uschamber.com.

Sincerely,

Karen A. Harbert