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19932 Federal Register I Vol. 51, No. 106 I Tuesday, June 3, 1966 / Rules and Regulations The "critical habitat" definition contained in the proposed rule only referred to those sections of 50 CFR Parts 17 and 226 that contain the lists of those areasso designated. The mechanics of the designation process are more properly considered under the section 4 regulations '(SO CFR Part 424). For purposes of determining whether any of their actions is likely to destroy or adversely modify critical habitat. Federal agencies involved in section 7 consultations need only be aware of those areas that have been designated by the Service as critical habitat. Two commenters requested that a defmition of critical habitat be included in the final rule. The Service notes that the requested defInition is contained in the Act and need not be repeated here. "Cumulative effects" and "effects of the action" are defmed in ~402.02 of the final regulations. Under ~ 402.14(g) (3) and (4) of the fmal rule. the Service will consider both the "effects of the action" subject to consultation and "cumulative effects" of other activities in determining whether the action is likely to jeopardize the continued existence of. a listed species or result in the destruction or adverse modification of critical habitat. In determining the "effects of the action," the Director first will evaluate the status of the species or critical habitat at issue. This will involve consideration of the present en\'ironment in which the species or critical habitat exists, as well as the environment that will exist when the action is completed. in terms of the totality of factors affeGting the species or critical habitat. The evaluation will serve as the baseline for determining the effects of the action on the species or critical habitat. The specific factors that form the environmental baseline are given in the definition of "effects of the uction," as requested by some commenters. * "Effects of the action" include the direct and indirect effects of the action that is subject to consultation. "Indirect effects" are those that are caused by the action and are later in Erne but are still reasonably certain to occur. They include the effects on listed species or critical- habitat of future activities that are induced by the action subject to consultation and that occur after that action is completed. In National Wildlife Federation v. Coleman. 529 F.2d 359 (5th Cir. 1976), the Court of Appeals for the Fifth Circuit found that "indirect effects" which can be expected to result must be considered under section 7 of the Act. In that case. the court enjoined completion .of a highway because the Department of Transportation faUed to consider the effects to the endangered sandhill crane from future private development that would result from construction of the highway. The Service will consider the effects to listed species from such future activities that are reasonably certain to occur under the analysis of "indirect effects," The Service's approach will be consistent with National Wildlife Federation v. Coleman. and the Service declines to narrow the scope of its review (as requested by one commenter) in light of existing case law. Effects of the action also include direct and indirect effects of actions that -are interrelated or interdependent with the proposal under consideration. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification: interdependent actions are those that have no significant independent utility apart from the action that is under consideration. As noted by one commenter. the "but for" test should be used to assess whether an activity is interrelated with or interdependent to the proposed action. - One commenter urged the Service to exclude Federal actions that have completed consultation from the environmental baseline unless it can be shown that the actions are reasonably certain to occur. The Service declines to adopt this suggestion. In issuing its biological opinion on an action. the Service's finding under section 7(a)(2) entails an assessment of the degree of impact that action will have on a listed species. Once evaluated. that degree of impact is factored into aU future section 7 consultations conducted in the area. These impacts will continue to be considered as part of the environmental baseline unless the Service receives notice from the Federal agency that the proposed action will not be implemented.Qr unless the biolo~icaJ opinion on the proposed action is no longer valid because reinitiation of consultation is requirea. In response to one comment. the Service notes that Federal actions that have proceeded through early consultation and that have received "no jeopardy" preliminary biological opinions should be factored into the environmental baseline. These actions. to be eligible for early consultation. had to be nonspeculative. feasible actions. and, because the preliminary biological opinion can later be confirmed as a final biological opinion, this initial review und conclusion by the Service must be considered in other section 7 consulta tions. The term "cumulative effects" means those effects on the species caused by other projectll and activitiell unrelated to the action under consultation that the Service will consider in formulating its biological opinion on the subject action. One cornmenter opposed the proposed definition of cumulative effects by arguing that the Act does not require an analysis of cumulative effects in a section 7 consultation. Citing section 7(c), the commenter noted that biological assessments may be limited to an examination of effects of "such action" on listed species. The commenter urged the Service to strike cumulative effects analysis from this rule because few Federal agencies have the capability to recognize or assess cumulative effects of State or private actions contemporaneously with conducting section 7 consultation. According to the commenter. the Service. as the expert on current sta~u~ of listed species. should keep watch on these State and private activities that come on line in a particular action area. The Service responds that a Federal agency. when evaluating the envi.ronmental impacts of a proposed action. must comply with NEPA. Since this compliance includes an analysis of cumulative effects, the Service believes that it is the Federal agency"s responsibility to develop this information. The cumulative effects analysis conducted in compliance with the broad definition under NEPA may be submitted to the Service by the Federal agency when initiating formal consultation. The Service can use this analysis and apply its narrower definition of cumulative effects when analyzing whether a proposed action. along with cumulative effects, violates section 7(a){2) oJ the Act. Other commenters. while not opposing the applicability of cumulative effects analysis to section 7 consultations. believed that the proposed scope of "cumulative effects" and "effects of.the action" were too narrow. These commenters. generally suggested that cumulative effects should include the effects of all reasonably foreseeable future Federal. State. and private actions. They stated that this scope would be more in line with that mandated under NEPA and argued thaI any lesser review could detrimentally affect endangered species. The commenters adamantly opposed any limitation on the foresight employed by the Service or Federal agencies that the) believed would result from the proposal's construction of cumulative effects. Section 7 consultation will analyze whether the "effects of the action" on listed species. plus any additional.