WSP06932 - Laserfiche WebLink

Home Browse Search

( ( l 0J2953 Federal Regisler / Vol. 49. No. 191 / Monday. October 1. i98~ / Rules and Regulations 38903 Section 424.11 Factors for listing. delis ling. or reclasslfying species. CNAP responded to this section that. "We do not agree that Congress in using the phrase 'solely on the basis of the best scientific data available to him' (ESA, section 4(b)) ever intended that every scarce creature or plant should be protected al all costs!" The Services note that the listing provisions of the Act. and the regulations intended to implement them. address the identification by the Secretary of species that qualify for the Act's protection. Insofar 8S these provisions consider the status of a species. Congress has clearly indicated its intention that any costs of eventual protection nol be considered as pa..l of the identification and listing process. The exemption procedures in section 7 of the Act are intended to effect any balancing of (he costs involved against the value of protecting a species~ These provisions of section 7. however. are completely independent of the identification and listing of species that are unlikely to survive without protection under the Act. Dr. \Villiams questioned the possibility, allowed in i 424.11(a). of lis ling taxonomic groups of rank higher lhan species, noting that. "Taxa above the species level are not biological entities-they are merely components in some body's classification scheme that reflects their beliefs concerning evolutionary arf'inities." The Services wish to clarify the intention, stated in the proposed and final regulation, that taxonomic groups at 8 rank higher than species will be listed only if all their constituent species individually meet the terms of the Act for listing. Listing of the taxon of higher rank then serves as a "short-hand" means of listing all its constituent species. APC recommended that ~ 424.11(b) be altered to conform more closely to the wording of section 4(blllIlA) of Ihe Act. by adding the material proposed to be located al i 424.11(1] and deleting the phrase" * . .. without reference to possible economic or other impacts of such determination." The Services believe that no substantial change would result from adoption of such a recommendation, and that the rule as propused more clearly expresses both the provisions of the Act and the instructive language of the Conference Report on the Amendments than would the recommended alternative. CRWCD indicated concern that ".. .. .. too little emphasis may have been given in the past to Ihe qualily and validity of the biological infonnation used by agencies in the listing process," They noted the provision of ~ 424.I1(b) requiring that the Services formulate listings based on the best available scientific and commercial information and recommended that listing decisions not be made on, .... .. .. shaky scientific foundations or biased analyses." The Services agree that listing decisions should not be made on the basis of faulty or inconclusive information. and affirm their intention to comply fully with relevant provisions of the Act and these regulations. It is their inle-nlion to base all listing decisions on the besl information available to them when such decisions are made. EPA recommended that language be added 10 Ihe preamble of the final rule to clarify why a more precise definition of lime is not included in i 424.11ld). which describes the period of time necessary to establish that a listed species has become extinct. The comment expressed understanding that this length of time might vary among the species concerned. in that some species are more cryptic than others. The Services agree and note that survey .techniques appropriate to a given species in determining whether it has become extinct will require varying lengths of time 10 carry out. The Services intend to base deli stings due to extinction upon conclusive evidence appropriate for the species in question. EPA also recommended that i 424.11(d](2) be altered to make it follow more closely the language of see lion 4(b](1)(A) of the Act. This recommendation is accepted. and the final rule is so altered. Section 424.12 Criteria for designating critical habitat. CNAP expressed the opinion that. ... . . there must be a positive showing of need before 8 critical habitat larger than that currently occupied by the species to be protected can be designated." The Services agree that any designation of critical habitat must be based on a finding that such designated area contains features lhat are essential in order to conserve Ihe species concerned. This finding of need will be a part of all designations of critical habilat. whether or not they extend beyond a species' currently- occupied range. EEl supported the Services' intention to protect species from". . . harm thai might result if critical habitat were publicized." Nevertheless. the Institute recommended thai private parties contemplating development or other activities be provided with information as to whether "non-designated critical habitat" could be affected. The Services note that the term "critica) habitat" is not properly applied to an area that has not been formally designated {IS such by regulation. However. the Services intend to inform private parties of the habitat needs of listed species whenever a potential conflict is identified between contemplated development and the species' conservation, regardless of whether critical habilat has been designated ror such species. EPA recommended that criteria and examples of cases be provided in which it would not be prudent to designa te critical habitat because designation would not be beneficial to the species concerned. The Services believe that such decisions must be made on a case- by-case basis. Because of the variations in circumstances. it is nol possible to formulate strict criteria according to which decisions regarding the prudence of a critical habitat designation might be made. Nevertheles:), it is possible to note some general considerations that may contribute to such decisions. As noted above in response to more general comments, the Services will examine the balance between risk to a species that might be a consequence of designating its critical habitat and benefits thai the species might derive from such designation. The risks may be immediate and obvious. such as the taking of a species that has demonstrated commercial value, or more speculative, such 8S vandalism to a species' habitat as a consequence of wide public notification of its precise boundaries. Experience has also shnwn (hat listing of 8 species may stimulate commercial demand that could not have been predicted beforehand. and Ihal designation of critical habitat may generate public antagonism thai could lead to vandalism. Such possibilities will be considered in determining whether a particular designation of critical habitat is prudent. To the extent. possible, the Services will attempt to undertake only those regulatory actions of net benerit to the conservation of species and their habitats. In those cases in which the possible adverse consequences would outweigh the benefits of designation of critical habitat, the Services may forego such designation as matter of prudence. Dr. Williams suggested that designation ofcrilical habitat not be considered determinable. "When habitat requirements are superfluous to the recovery requirements of the species." He noted lhat this would be appropriate in cases of species arfected by such threats as pesticides, exotic an}mals. or hunting. The Services believe 1hat such classes of threats are often related to habitat in the broad sense. noting that .. ,'.. .) .. .. .. -----..