[Federal Register Volume 91, Number 138 (Tuesday, July 21, 2026)]
[Rules and Regulations]
[Pages 45662-45683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-14629]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2025-0048; FXES11110900000-267-FF09E23000]
RIN 1018-BI76
Endangered and Threatened Wildlife and Plants; Regulations for
Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS or the Service),
amend portions of our regulations for section 4 of the Endangered
Species Act of 1973, as amended (Act or ESA). Specifically, we revise
regulations related to section 4(b)(2) of the Act. Section 4(b)(2)
requires consideration of the economic impact, the impact on national
security, and any other relevant impact of designating any particular
area as critical habitat and authorizes the exclusion of areas from
critical habitat if the benefits of excluding the area outweigh the
benefits of designating it as critical habitat. These revisions
articulate when and how we determine whether the benefits of excluding
an area outweigh the benefits of designating the area as critical
habitat (exclusion analysis). This rule reflects the Service's
experience and existing case law. The intended effect of this rule is
to provide greater transparency and certainty for the public and
stakeholders regarding the 4(b)(2) exclusion process.
DATES: This rule is effective August 20, 2026.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final
regulation, are available at https://www.regulations.gov at Docket No.
FWS-HQ-ES-2025-0048.
FOR FURTHER INFORMATION CONTACT: John Tirpak, U.S. Fish and Wildlife
Service, Division of Conservation and Classification; 703-358-2163;
[email protected]. 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.
SUPPLEMENTARY INFORMATION:
[[Page 45663]]
Background
The Endangered Species Act of 1973, as amended (hereafter referred
to as the Act or ESA; 16 U.S.C. 1531 et seq.), states that the purposes
of the Act are to provide a means to conserve the ecosystems upon which
endangered species and threatened species (listed species) depend, to
provide a program for the conservation of listed species, and to
achieve the purposes of certain treaties and conventions (16 U.S.C.
1531(b)). Moreover, the Act states that it is the policy of Congress
that all Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall use their
authorities to further the purposes of the Act (16 U.S.C. 1531(c)(1)).
The Secretaries of the Interior and Commerce (Secretaries) share
responsibilities for implementing most of the provisions of the Act.
Generally, marine and anadromous species are under the jurisdiction of
the Secretary of Commerce, and all other species are under the
jurisdiction of the Secretary of the Interior. Authority to administer
the Act has been delegated by the Secretary of the Interior to the
Director of the FWS and by the Secretary of Commerce to the Assistant
Administrator for the National Marine Fisheries Service (NMFS)
(collectively, the Services). Together, the Services administer the Act
via joint regulations in chapter IV of title 50 of the Code of Federal
Regulations (CFR). In addition, each of the Services also has
regulations specific to its own administration of the Act (located at
50 CFR part 17 for FWS and at 50 CFR parts 222 through 226 for NMFS).
Because this rulemaking applies only to the FWS, the regulations in
this rulemaking do not require NMFS to change its processes for
consideration of exclusions under section 4(b)(2) of the Act. Since
this rulemaking is solely applicable to the FWS, when we refer to the
Secretary, we mean the Secretary of the Interior.
The regulations in this rule provide criteria or otherwise clarify
the processes by which the FWS will implement various statutory
requirements set forth in section 4 of the Act. This rule is intended
to provide the public with a clear, transparent explanation of how we
are revising the ESA regulations in 50 CFR part 17. These regulatory
guidelines are based on our expertise in evaluating and protecting
species, as well as in employing traditional tools of statutory
interpretation that the courts have outlined.
One of the tools that the Act provides to conserve species is the
designation of critical habitat. The purpose of critical habitat is to
identify the areas that are essential to the listed species'
conservation. When the Services determine that a species warrants
listing, the Act requires the Services to designate critical habitat
concurrently with the listing rule to the maximum extent prudent and
determinable, or up to 1 year following listing 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 and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protections; 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)).
Unless the FWS concludes that a critical habitat designation is not
prudent and determinable for species listed under the Act, we must
follow the statutory and regulatory provisions to designate critical
habitat. The Act's language makes clear that biological considerations
drive the initial step of identifying critical habitat. Section 4(b)(2)
expressly requires designations to be made based on the best scientific
data available. Therefore, the designation process begins by relying on
the best scientific data available to identify the species' habitat.
Next, the Act's definition of ``critical habitat'' requires the
Secretary to identify those areas of habitat occupied by the species at
the time of listing that contain physical or biological features that
are essential to the conservation of the species and that may require
special management considerations or protection, and the specific areas
of unoccupied habitat that are essential to the conservation of the
species.
Section 4(b)(2) also requires that, in designating critical
habitat, the Secretary must take into consideration the impacts of
specifying any particular area as critical habitat (16 U.S.C.
1533(b)(2)). The second part of section 4(b)(2) then provides the
Secretary the authority to exclude any particular area from a critical
habitat designation if the benefits of exclusion outweigh the benefits
of inclusion for that area, so long as excluding it will not result in
the extinction of the species. Our regulations in 50 CFR part 424 set
forth relevant definitions (50 CFR 424.02), describe the standards and
procedures for identifying critical habitat (50 CFR 424.12), and
describe the standards and procedures for impact analysis and
exclusions of particular areas of critical habitat (50 CFR 424.19). In
addition to our joint regulations, the Services developed the joint
Policy Regarding Implementation of Section 4(b)(2) of the ESA that
provided direction regarding how the Services would exercise discretion
to exclude areas from critical habitat designations (81 FR 7226,
February 11, 2016; hereafter ``2016 policy''). The 2016 policy
describes how we consider ``other relevant impacts,'' including
conservation plans, agreements, and partnerships, when designating
critical habitat. On December 18, 2020, we finalized FWS-only
regulations that set forth a process for excluding areas of critical
habitat under section 4(b)(2) of the Act (85 FR 82376; hereafter ``the
2020 rule''), superseding the 2016 policy and 50 CFR 424.19. Then on
July 21, 2022, we rescinded those regulations (87 FR 43433; hereafter
``the 2022 rescission''). We again are revising the regulations
pertaining to exclusions of particular areas of critical habitat under
section 4(b)(2) of the ESA.
In our 2025 proposed rule (90 FR 52592, November 21, 2025) we
referred to an Executive Order (E.O.) as the impetus for reviewing and
revising the regulations that pertain to excluding areas from critical
habitat under section 4(b)(2). E.O. 14154, ``Unleashing American
Energy,'' issued January 20, 2025, directed all departments and
agencies to immediately review agency actions that potentially impose
an undue burden on the identification, development, or use of domestic
energy resources, and, as appropriate and consistent with applicable
law, consider suspending, revising, or rescinding agency actions that
conflict with this national objective. To implement provisions of E.O.
14154, the Department of the Interior subsequently issued Secretary's
Order (S.O.) 3418, which directed Assistant Secretaries to take steps,
as appropriate, to suspend, revise, or rescind multiple actions that
had been finalized under the prior Administration. While E.O. 14154 and
S.O. 3418 initiated our review, our goal in revising these regulations
was to determine how best to designate critical habitat for endangered
species and threatened species in compliance with section 4(b)(2) of
the Act while also considering our experience administering the Act and
the Administration's priorities. Based on our evaluation, and for
reasons discussed in more detail below, we revise 50 CFR part 17.
[[Page 45664]]
This rule is one of two rules publishing in today's Federal
Register that revise the regulations that implement the Act.
Changes From Proposed Rule
We made two minor changes in the regulatory text. The first is at
50 CFR 17.90(d)(1) in which we have changed the phrase ``the FWS's
expertise'' to ``the Service's expertise.'' We made this change for
consistent use of ``Service'' throughout the regulatory text. The
second change is at 50 CFR 17.90(d)(2), in which we have changed the
word ``assign'' to ``give.'' This ensures consistency with 17.90(d)(1).
We did not intend for the regulatory text to be inconsistent between
paragraphs (d)(1) and (d)(2) and have changed paragraph (d)(2) to be
consistent with the regulatory text finalized in 2020. Further we want
to avoid any potential misconception that we would quantify the weight
of a particular impact when designating a specific area as critical
habitat.
Regulatory Revisions
This rule provides the framework for the FWS's consideration of the
economic impact, impact on national security, and any other relevant
impacts of specifying any particular area as critical habitat under
section 4(b)(2) of the Act and for the FWS's process for identifying
any exclusions of particular areas from designations of critical
habitat.
Once the Secretary has assessed the relevant impacts of designating
particular areas as critical habitat, section 4(b)(2) authorizes the
exclusion of any area from the designation if the Secretary determines
that the benefits of excluding the area outweigh the benefits of
including the area in the critical habitat designation (unless failure
to designate the area will result in the extinction of the species) (16
U.S.C. 1533(b)(2)). The FWS refers to this comparative weighing of the
impacts of excluding and including particular areas under 4(b)(2) as an
``exclusion analysis.''
To undertake an exclusion analysis, we first evaluate whether there
are any meaningful impacts from designating any area such that avoiding
those impacts may outweigh the benefits of including the area in the
designation. If there are no such impacts that we are aware of or have
been identified through public comments, there is no need to proceed
further with weighing the impacts of designation. If there are any such
impacts, we undertake a comparative weighing of those impacts. The ESA
does not prescribe any elements of or methods for the analysis, such as
the weight to give each factor or impact in determining the benefits of
inclusion and the benefits of exclusion. Therefore, in completing the
exclusion analysis, as long as the FWS has considered all the relevant
impacts, in a manner that is not arbitrary or capricious under the
Administrative Procedure Act (APA; 5 U.S.C. 551 et seq.), the ESA
affords the Secretary broad discretion in deciding whether or not to
exclude any area for which the benefits of exclusion outweigh the
benefits of inclusion.
As stated above, these regulations apply to the considerations
under section 4(b)(2) of the ESA and determinations whether to exclude
particular areas of critical habitat from a final critical habitat
designation. However, given existing case law, we seek to clarify that
these regulations do not apply to section 4(a)(3) of the ESA, which
requires the designation of critical habitat ``to the maximum extent
prudent . . .''. Previous statements made with respect to how we
anticipated interpreting section 4(a)(3) likely contributed to
confusion regarding the relationship between 4(b)(2) and 4(a)(3),
leading a few courts to determine that we had not conducted the proper
analysis under 4(b)(2) when finding critical habitat was not prudent
for a given species. See Natural Resources Defense Council v. U.S.
Dep't of the Interior, 113 F.3d 1121, 125 (9th Cir. 1997) (hereafter
``NRDC'') (citing 49 FR 38900 at 38903, October 1, 1984) (noting that
the Services would balance the risks to the species of designating
versus the benefits that might derive from designation and would forgo
designations of critical habitat where the possible adverse
consequences would outweigh the benefits). See also Conservation
Council of Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)
(hereafter ``Conservation Council of Hawaii''); and Center for
Biological Diversity and Healthy Gulf v. U.S. Fish and Wildlife
Service, 792 F. Supp. 3d 50 (D.D.C. 2025) (hereafter ``CBD and Healthy
Gulf''). The legislative history discussing prudency under what is now
section 4(a)(3) refers to circumstances where a designation would not
be in the best interest of the species (Center for Biological
Diversity, et al. v. U.S. Department of the Interior, et al, 2026 WL
898264, at *22 (N.D. Cal. Mar. 30, 2026)) and does not include any
reference to consideration of economic impacts and other factors. The
legislative history that discusses section 4(b), however, notes that
while prior to the 1978 amendments, the determination of critical
habitat had been a purely biological question. Under the amended text
of section 4(b)(2), economics and other relevant impacts, including
impacts to the public, must be considered in setting the limits of
critical habitat (H.R. Rep. No. 95-1625, at 16-17 (1978), as reprinted
in 1978 U.S.C.C.A.N. 9453, 9466-67).
The reference in the legislative history to what is now 4(b)(2)
makes clear that critical habitat is only designated after impacts to
human activity are considered, which includes considerations of the
impacts to the public from a designation. Additionally, the language of
4(a)(3)(A) states that the FWS shall ``designate'' critical habitat to
the maximum extent prudent, which implies that a determination that
critical habitat is not prudent is not a ``designation.'' The language
in 4(b)(2) then is directed to ``designations'' and considerations for
excluding specific areas from a designation. Given the plain language
of the Act and the context of the legislative history, a decision that
critical habitat is not prudent must rest on considering whether
designation is in the best interest of the species and its
conservation; whereas, during the course of actually designating
critical habitat, the Services must consider economic and other
relevant impacts pursuant to section 4(b)(2). Though sections 4(a)(3)
and 4(b)(2) cross-reference each other, their functions are distinct:
section 4(a)(3) provides that (unless the Secretary determines that
designating critical habitat is not prudent) critical habitat must be
designated in accordance with 4(b) and reinforces the timeline (i.e.,
concurrently with listing) of designating critical habitat.
As the court holdings in NRDC 113 F.3d at 1125, Conservation
Council of Hawaii 2 F. Supp. 2d at 1287-88, and CBD and Healthy Gulf at
792 F. Supp. 3d at 66 demonstrate, when considering whether a
designation of critical habitat is not prudent, the Services must take
into account the specific factual circumstances at issue for each
species including consideration of the risks and benefits of the
critical habitat designation as a whole rather than individual areas.
However, this does not require the Services to engage in the type of
area-by-area weighing process that applies under section 4(b)(2) of the
Act.
Summary
As mentioned earlier, the Services' joint regulations at 50 CFR
424.19 describe the standards and procedures for impact analysis and
exclusions of
[[Page 45665]]
particular areas of critical habitat, and the non-binding 2016 policy
provides direction regarding how the Services would consider
partnerships and conservation plans, conservation plans under section
10 of the ESA, Tribal lands, Federal lands, economic impacts, and
national and homeland security impacts in the exclusion process under
section 4(b)(2) of the ESA. We have concluded that reinstating our FWS-
only regulations at 50 CFR 17.90 will be more effective in guiding
agency activities and will provide greater transparency and certainty
to the public and stakeholders and is our preferred approach. The
regulations include some differences relative to what was outlined in
the 2016 policy. These differences from the 2016 policy include an
information standard applicable to when FWS undertakes a discretionary
weighing analysis, a clarification of how considerations for exclusions
will be conducted for Federal lands, and an approach for giving weight
to the benefits of inclusion or exclusion of any particular areas
designated as critical habitat. Additionally, as discussed in our 2020
proposed rule (85 FR 55398, September 8, 2020) we decided to revisit
certain language in the preamble of the 2016 policy, as well as certain
statements in the preamble to the 2013 rule that revised the
regulations on the timing of our economic analyses at 50 CFR 424.19 (78
FR 53058, August 28, 2013) (hereafter ``the 2013 rule''), to provide
clarity to the FWS and the public in light of the Supreme Court's
decision in Weyerhaeuser Co. v. U.S. FWS, 586 U.S. 9 (2018) (hereafter
``Weyerhaeuser'') that decisions not to exclude particular areas of
critical habitat are judicially reviewable. At the time we developed
the 2013 rule and 2016 policy, the Services were guided by a line of
cases in which courts had held that a decision by the Services not to
exclude a particular area under section 4(b)(2) of the Act was
committed to agency discretion by law and therefore not subject to
judicial review. The FWS is of the view that the Supreme Court's
decision underscores the importance of being deliberate and transparent
about how we go about making decisions to exclude areas from
designations of critical habitat. For more details, please see our 2020
proposed rule and 2025 proposed rule.
Effects of the Final Rule
These regulations largely adopt provisions of the 2016 policy and
regulations at 50 CFR 424.19 with further clarifications in the process
that FWS will use when undertaking exclusion analyses. After
consideration of the information provided through the public comment
process, we are finalizing this rule as proposed with the two minor
changes mentioned above (see Changes From Proposed Rule). We have
provided clarification to questions and concerns below in the responses
to public comments.
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''
(Belmont Mun. Light Dep't v. FERC, 38 F.4th 173, 187 (D.C. Cir. 2022)
(quoting MD/DC/DE Broad. Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir.
2001))). Because each of the provisions stand on their own, the FWS
views 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 FWS to exclude particular areas from critical habitat
designations. Specifically, these distinct provisions include: (1)
impact analysis procedures, (2) consideration of economic impacts,
national security, and other relevant impacts, (3) when the Secretary
will conduct an exclusion analysis, (4) weighing of the benefits of
inclusion and exclusion, and (5) when the Secretary shall exclude an
area. In the event that any portion of this final rule is held to be
invalid or impermissible, the FWS intends that the remaining aspects of
the regulatory provisions be severable.
In finalizing the specific changes to the current regulations in
the rule portion of this document and setting out the accompanying
clarifying discussion in this preamble, we are establishing prospective
standards only. These regulations will supersede the 2016 policy and
regulations at 50 CFR 424.19 for FWS; and they will apply to FWS
critical habitat rules finalized after the effective date of this rule
and will not apply retroactively to critical habitat rules finalized
prior to the effective date of this rule. For the effective date of
this rule, see DATES, above. Nothing in these revisions to the
regulations is intended to require that any critical habitat
designations be reevaluated on the basis of these final regulations.
Summary of Comments and Responses
In our November 21, 2025, proposed rule (90 FR 52592), we requested
public comments by December 22, 2025. We received a total of 12,532
submissions, representing approximately 306,628 individuals, by the
close of the comment period. Commenters included individual members of
the public, representatives from States, Tribes, industry
organizations, and environmental organizations, among others.
During the public comment period, we received several requests for
public hearings. Public hearings are not required for regulation
revisions of this type, and we elected not to hold public hearings. We
also received several requests for extensions of the public comment
period. However, we elected not to extend the public comment period
beyond the original 30-day public comment period because we found the
30-day comment period provided sufficient time for a thorough review of
the proposed revisions. The APA does not specify a minimum number of
days for a comment period, but the comment period must be long enough
to afford the public a meaningful opportunity to comment. In this case,
with a 30-day public comment period, the public had a meaningful
opportunity to comment on the proposed rule, as demonstrated by the
thousands of comments received.
The revisions are to portions of the regulations that were
previously revised in 2020 and 2022. The number of comments received
indicate that members of the public were aware of the proposed rule and
had adequate time to review it. In addition, we provided five
informational sessions for a wide variety of audiences. Over 2,100
attendees participated in these sessions, and we addressed questions
from the participants as part of the sessions. Finally, on our website,
we provided additional information about the regulations, such as
frequently asked questions and a prerecorded presentation on the
proposed revisions.
Most of the submissions were nonsubstantive in nature, expressing
either general opposition to or support for the proposed rule with no
supporting information or analysis. Other comments expressed opinions
regarding topics not covered within the proposed regulation. We also
received several hundred letters with detailed substantive comments
with specific rationales for support of or opposition to specific
portions of the proposed rule. We also received comments that were
outside the scope of the rulemaking such as comments regarding
litigation on other ESA regulations (Center For Biological Diversity v.
Dep't of the Interior, 2026 WL 898264, at *22 (N. D. Cal. Mar. 30,
2026)) that are pending and that we are not responding to here. Below,
we summarize and respond to the significant, substantive comments we
received.
[[Page 45666]]
Framework for Considering an Exclusion and for Conducting a
Discretionary 4(b)(2) Exclusion Analysis (Sec. 17.90(a))
Comment 1: Some commenters stated that the Service should engage
with appropriate State and other authorities to the maximum extent
practicable in exclusion analysis and prior to publishing a proposed
critical habitat designation. Commenters suggested that we include
additional regulatory text to include a process for consulting with and
considering input from State fish and wildlife agencies, local
governments, small businesses, and Tribal governments to identify
economic, biological, and other relevant impacts.
Response: We routinely coordinate with partners and stakeholders
(e.g., State natural resource agencies, Federal agencies, Tribes)
before and after a species is listed and critical habitat is
designated. For example, we coordinate during the development of a
species status assessment which informs our evaluation of whether to
list a species as well as possible areas for designation as critical
habitat if listing is warranted. We also coordinate with Federal
agencies during the development of the draft economic analysis prior to
the publication of the proposed critical habitat rule. Through these
coordination efforts, we typically receive information from State and
Federal agencies regarding potentially relevant impacts early in our
development of a critical habitat designation. Additionally, during the
public comment period for a proposed critical habitat designation, we
receive information regarding other potentially relevant economic or
other impacts from a variety of sources (for example, State agencies,
local governments, small businesses, private individuals and Tribal
governments) that we consider when finalizing the designation. In
addition, language in the ESA or other authorities already require the
Services to coordinate and seek input from States, Tribes, and local
governmental agencies. For instance, the requirements regarding
coordination with States and counties in section 4(b)(5)(A)(ii) of the
Act are already included in our regulations at 50 CFR 424.16(c). The
Services also have a joint policy, ``Interagency Policy Regarding the
Role of State Agencies in ESA Activities,'' which was developed in
coordination with the State fish and wildlife agencies, that outlines
our commitment to engagement and collaboration among the Services and
State fish and wildlife agencies on many aspects of ESA implementation,
including listing species (81 FR 8663, February 22, 2016). We conclude
that our current process provides for coordination with potentially
affected parties, and it is unnecessary to codify it in regulation.
Comment 2: We received multiple comments regarding public
involvement and transparency of exclusion analyses for future critical
habitat rulemakings. For example, some commenters stated that we should
allow comments on the draft economic analysis and on our evaluation of
any relevant impact of including or excluding areas from critical
habitat. Other commenters appreciated the requirement for the Service
to publish for public comment the draft economic analysis suggesting it
would add transparency to the process. Finally, other commenters
suggested that rather than merely considering the economic impacts of
designating critical habitat, the Service now has to conduct an
exhaustive economic analysis of the overall proposed designation and
conduct a full public comment process on the economic analysis before
the critical habitat can be designated which would pose a significant
burden on the agency. Commenters suggested additional regulatory text
to require documentation of specific evidence when we rebut information
provided by the public or to allow the public to comment on any
relevant factor regarding a designation and not just the economic
analysis.
Response: With respect to public comment, we always seek comment on
any proposed critical habitat designation regarding a wide range of
issues, including biological factors that may inform the proposed
designation and non-biological considerations that may inform potential
exclusions from the final designation. We do not limit the scope of
public comment to economic considerations; all relevant substantive
comments are considered when developing a final critical habitat
designation. We also already make the draft economic analysis of the
proposed critical habitat designation available as supplemental
information on Regulations.gov concurrently with publication of the
proposed rule to designate critical habitat. The regulations we are
finalizing at 50 CFR 17.90 will not change this existing practice.
During the public comment period for a proposed critical habitat
designation, the public has the opportunity to review and comment on
the draft economic analysis, as well as on any other relevant impacts
from the designation. Because we already request public comment on all
areas of the rulemaking whenever we propose to designate critical
habitat, modifying the regulation to require the Service to request
comments on any relevant impacts, including non-economic impacts, is
duplicative and unnecessary. Also, regarding documentation of evidence,
regardless of whether we exclude an area or not, whenever we conduct a
weighing analysis we detail what was considered within our final rules
for the critical habitat designation. We decline to include additional
regulatory text regarding this aspect of the process.
Comment 3: Many commenters support inclusion of the non-exhaustive
list of categories of potential impacts described at 50 CFR 17.90(a).
Commenters stated that lists provide transparency and clarity and allow
focused public comments while being adaptable to specific situations.
Other commenters stated that the rule sets forth an unlawfully broad
list of impacts. For example, for ``economic impacts'' they cited our
example of ``opportunity costs arising from the critical habitat
designation (such as those anticipated from reasonable and prudent
alternatives that may be identified through a section 7
consultation),'' and ``impacts to . . . Federal lands'' (90 FR 52592 at
52599, November 21, 2025) which they point out would include routine
regulatory costs that will exist for most areas of proposed critical
habitat and therefore would be likely to result in a significant
reduction in the number and extent of critical habitat designations.
Others suggest the examples of ``other relevant impacts'' provides a
nearly unlimited basis for exclusions. Some highlighted ``community
interests'' as redundant, or subjective and vague.
Additionally, many commenters recommended revisions to regulatory
text describing impacts. For example, commenters suggested that we add
to or elaborate on the potential impacts listed in the proposed
regulations, such as direct and indirect impacts, foreseeable delays in
permitting, and economic effects on developers and builders. Commenters
requested explicit inclusion of impacts to Tribes including treaty-
reserved rights and the Federal trust responsibilities as other
relevant impacts. Commenters suggested that we remove the term
``nonbiological'' in paragraphs (d)(1)(i), (d)(1)(ii), and (d)(1)(iv)
or rephrase to expressly acknowledge and allow for external input
within the Service's areas of expertise as well as outside it.
Response: We will evaluate on a case-by-case basis any information
that is submitted by a proponent of an exclusion to determine whether
they
[[Page 45667]]
have presented credible information regarding the existence of a
meaningful economic or other relevant impact supporting a benefit of
exclusion for that particular area. Therefore, with the application of
the credible information standard, we anticipate that not every
submission by a proponent of an exclusion would meet the standard of
having a meaningful impact and thereby trigger an exclusion analysis.
We decline to make additional regulatory text revisions. The text
of the regulation is clear that the examples of potential impacts
provided at 50 CFR 17.90(a) are not exhaustive and ``other relevant
impacts'' may include but are not limited to impacts to Tribes, States,
local governments, public health and safety, community interests, the
environment (such as increased risk of wildfire or pest and invasive
species management), Federal lands, and conservation plans, agreements,
or partnerships. Based on the specific facts in particular critical
habitat designations, there may be other impacts identified, and we
would consider those impacts.
The phrase ``other relevant impacts'' in the Act gives the
Secretary broad discretion to determine what those other relevant
impacts might be. The discretionary exclusion authority is thoroughly
described in Solicitor's Memorandum Opinion M-37016, ``The Secretary's
Authority to Exclude Areas from a Critical Habitat Designation under
Section 4(b)(2) of the Endangered Species Act,'' (https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37016.pdf) (October 3,
2008, p. 12), and the list provided in the preamble to the proposed
rule and in the final regulatory text of this rule illustrates the
types of information we may consider. Furthermore, subparagraphs (i)-
(iv) in paragraph (d)(1) identify a non-exhaustive list of categories
of impacts that may be outside the scope of the Service's expertise.
Even though some of the categories on this list refer to
``nonbiological impacts,'' we recognize that many sources outside of
the Service also have information and expertise regarding biological
impacts. The Service would consider that information or expertise in
the weighing of benefits of inclusion or exclusion of particular areas.
Comment 4: Commenters stated that the proposed rule's non-
exhaustive list of ``other relevant impacts'' and economic impacts is
heavily weighted toward negative impacts of designating critical
habitat on the community and other stakeholders. They state the list
does not include the potential economic and community benefits, for
example, socio-economic benefits, cultural or other ecological
benefits, or co-benefits (such as protection of other species), that
may be distinct from the ``conservation value of the area.'' Commenters
requested that full economic accounting of future designations include
these potential benefits.
Response: We are not limited to considering the examples of impacts
(economic or otherwise) included in this rule. If the specific facts
indicate that there are economic benefits from including a particular
area in the designation, we will consider those benefits, as
appropriate. In situations where economic benefits are relevant, we
generally describe two broad categories of benefits of inclusion of
particular areas of critical habitat: (1) those associated with the
primary goal of species conservation and recovery, and (2) those that
derive from the habitat conservation measures to achieve this primary
goal. In the cases where there are incremental impacts beyond
administrative impacts from designating critical habitat, we may lack
specific information to quantify the use or non-use benefits associated
with critical habitat designations such as recreation, wildlife
viewing, or ecosystem services but can discuss them qualitatively, as
per Office of Management and Budget (OMB) Circular A-4 guidance. As a
result, when we lack quantitative data we focus our analysis of
benefits of inclusion qualitatively to describe the conservation value
of the particular area of critical habitat as weighed against the
benefits of exclusion.
Comment 5: Commenters stated that the proposed rule does not
address the impacts of excluding an area necessary to the recovery of a
species and that impacts on recovery should be addressed because the
goal of the Act is ultimately to recover and delist the species.
Multiple comments highlight that incremental exclusions, each deemed
non-extinction-causing, can collectively degrade ecosystems and
recovery potential, contrary to the mandate of the Act. Commenters
requested an evaluation of the cumulative effects of exclusions, rather
than on a case-by-case basis. Others requested that proposed critical
habitat designations essential for future climate adaptation be
prohibited from exclusion.
Response: We note that critical habitat is one of many tools
available to conserve species, and the exclusion of an area from a
critical habitat designation does not mean that the area can no longer
contribute to conservation. In fact, we have excluded many areas
because they are already being managed for the conservation of a
species, thereby reducing the benefits of including those areas within
a critical habitat designation. Even though these areas are excluded
from critical habitat designations, they will still contribute to the
recovery of the species.
We consider the potential effects to species' recovery when we
enter into an exclusion analysis under section 4(b)(2) of the Act. In
giving weight to the benefits of including and excluding particular
areas, we evaluate the conservation value of the area, including the
current function of the area for the species and the future recovery
value of the area to the species. Benefits of including or excluding an
area from critical habitat are considered for each designation, are
fact-specific to each species, and take into consideration the best
scientific data available for the species.
With regards to evaluating the cumulative effects of individual
exclusions for a critical habitat designation, the Act is clear that we
are required to take into consideration the economic impact, the impact
on national security, and any other relevant impact, of specifying any
particular area as critical habitat. And as for the suggestion to
prohibit any exclusions of critical habitat that may be important to
provide areas for climate change adaptation, the Act does not
contemplate any such prohibition, and we decline to include it in
regulation.
Comment 6: Commenters cite the statutory requirement that the
appropriate scale of an exclusion analysis is of the ``particular
area'' of a proposed critical habitat designation and note that this is
in conflict with the proposed rule allowing the Secretary to determine
the appropriate scale for the consideration of impacts from a critical
habitat designation. Many comments emphasize that the ``particular
area'' should be a localized scale, such as individual parcels or
counties rather than broad regional or national scales.
Some commenters state that scale decisions should be based on
species' biological needs, not external economic or political factors.
Other commenters suggest that the Secretary should retain the
discretion to determine exclusions at whatever scale he deems to be
appropriate, to specifically state what that scale is in the proposed
rule when making a critical habitat designation, and to take into full
consideration the economic impacts at that scale.
Response: We decline to define a scale for an exclusion analysis.
If we
[[Page 45668]]
were to suggest a consistent scale, it would need to be broad or
generic to adequately address each species' situation and data
availability which would not ultimately provide the desired clarity.
The Service must have flexibility to evaluate these ``particular
areas'' of critical habitat at whatever scale is appropriate to each
situation. Each critical habitat proposal includes a description of the
scope of the area being proposed and often includes ``particular
areas'' that are being considered for exclusion and the Service then
uses the scale of analysis appropriate to that situation. In one case,
the court upheld the Service's analysis at the ``subunit'' level rather
than individual parcels that the plaintiff argued was required (Otay
Mesa Prop. L.P. v. DOI, 714 F. Supp. 2d 73, 84 (D.D.C. 2010) (rev'd on
other grounds (646 F.3d 914 (D.C. Cir. 2011))).
Comment 7: Commenters stated that use of the incremental approach
to assessing impacts of critical habitat prevents consideration of the
full costs of a critical habitat designation. They requested that we
include all economic impacts of a listing in our economic assessment
following the coextensive approach, rather than limiting it to the
incremental effects of critical habitat designation (citing Skipper v.
United States Fish & Wildlife Serv., 796 F. Supp. 3d 996, 1006 (D. Ala
2025) (hereafter ``Skipper'')).
Response: The 2013 rule revisions to 50 CFR 424.19 codified the use
of the ``incremental analysis'' or ``baseline approach'' method for
conducting impact analyses, including economic, national security, or
other relevant impacts analyses, for critical habitat designations.
That final rule contains responses to public comments that clearly lay
out the Services' rationale for using the incremental analysis method
(78 FR 53058 at 53067, August 28, 2013). Evaluating incremental impacts
that result from a regulation being promulgated, rather than
considering coextensive impacts that may be ascribed to other
regulations, is further supported by E.O. 12866, as applied by OMB
Circular A-4. Agencies should identify the baseline to describe how the
world would look in the absence of the proposed action. Identifying
this baseline is necessary to allow assessment of the relative benefits
and costs attributable to the proposed action (Regulatory Impact
Analysis: Frequently Asked Questions (FAQs), February 7, 2011). In
addition, a court decision addressing this question confirmed the
validity of evaluating incremental impacts of critical habitat
designations in the Tenth Circuit. See Northern New Mexico Stockman's
Ass'n v. United States Fish & Wildlife Serv., 30 F.4th 1210 (10th Cir.
2022) which concludes that the Service's incremental impacts approach
was permissible in light of regulatory changes that post-dated the
Tenth Circuit decision that had required coextensive approach.
Recently, in Skipper, a district court ``adopted the reasoning'' of an
earlier Tenth Circuit decision in New Mexico Cattle Growers Ass'n v.
U.S. Fish and Wildlife Service, 248 F.3d 1277, 1285 (10th Cir. 2001)
(hereafter ``New Mexico Cattle Growers'') which invalidated the
Service's ``baseline approach'' to assessing the economic costs of
critical habitat designations wherein the Service isolated the
anticipated costs to those attributable solely to the designation
itself. The Skipper court noted an apparent circuit split and
distinguished New Mexico Cattle Growers from a Ninth Circuit decision
that upheld the Service's use of the baseline approach. See Arizona
Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010). In
2022, however, following revision of the relevant regulatory
definitions in effect at the time of the 2001 New Mexico Cattle Growers
decision, the Tenth Circuit issued a decision upholding the Service's
use of the baseline methodology and, in doing so, resolved the previous
circuit split. See Northern New Mexico Stockman's Ass'n v. U.S. Fish
and Wildlife Service, 30 F.4th 1210, 1227 (10th Cir. 2022). The Skipper
court failed to consider this development in its summary judgment
opinion and order and Intervenor-Defendants moved for reconsideration,
relying on the 2022 Tenth Circuit opinion; the court has not yet ruled
on that motion.
Considering Relevant Impacts (Sec. 17.90(b))
Comment 8: Some commenters supported the proposed language at 50
CFR 17.90(b). However, some suggested that we should not consider
economic or national security impacts when designating critical
habitat. Others suggested the inclusion of the current language
``probable economic, national security, and other relevant impacts''
requires less certainty compared to the ``clear and substantial''
evidence requirement proposed for section 7 consultations at 50 CFR 402
or the proposed foreseeable future requirements at 50 CFR 424.11.
Commenters are concerned the language will result in the Service
prioritizing nonbiological impacts when weighing impacts. Commenters
describe the need for evidentiary guardrails such that information used
should be objective, rigorous, and consistent with ``best available
scientific and commercial data'' mandate.
Response: Section 4(b)(2) of the Act requires us to take into
consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as
critical habitat. We include ``probable'' from 50 CFR 424.19 as it
provides guidance that the Service should not consider improbable or
speculative impacts. However, as discussed in our 2013 rule (78 FR
53058, August 28, 2013), we do not intend that the term ``probable''
requires a showing of statistical probability or any specific numeric
likelihood. Moreover, the ``activities'' at issue are only those that
would require consultation under section 7 of the Act. Although impact
analyses are based on the best scientific data available, any
predictions of future impacts are inherently uncertain and subject to
change. Thus, the Service will consider the likely impact of the
designation using our experience administering the ESA and conducting
section 7 consultations and will not make specific predictions about
the outcome of particular section 7 consultations that have not been
completed.
Realistically, the Service can only consider activities likely to
occur, which we interpret for purposes of this rule to mean the same
thing as the term ``probable.'' This use of ``probable'' reflects a
reasonable interpretation of the statute. Furthermore, as stated in OMB
Circular A-4, the assumptions of the analysis must be clearly
articulated and should avoid speculation when assessing costs and
benefits of a regulation. We use the best available information in our
consideration of impacts of a critical habitat designation and fully
describe the methods, assumptions, and results in our draft economic
analysis.
Approach To Determining Whether To Conduct a Discretionary Exclusion
Analysis (Sec. 17.90(c))
Comment 9: Some commenters interpreted the proposed rule as
creating a provision that requires the Secretary to waive his
discretion on whether to conduct an exclusion analysis given (1) the
presence of the ``credible information'' trigger to enter into an
exclusion analysis, and (2) the language ``will conduct'' which makes
exclusion analyses mandatory whenever credible information is
presented. Other commenters argue that exclusion analyses are already
mandatory. Some cite Weyerhaeuser in stating that the regulation should
include language
[[Page 45669]]
requiring documentation of any rationale for not performing an
exclusion analysis and, if an analysis is conducted, providing
rationale for not excluding areas.
Response: Under this rule, the Secretary will conduct an exclusion
analysis when credible information regarding the existence of a
meaningful economic or other relevant impact supporting a benefit of
exclusion for that particular area has been presented or whenever the
Secretary otherwise decides to exercise discretion to evaluate any
particular area for possible exclusion. The rule does not waive the
Secretary's discretion; instead, the regulation constitutes the
Secretary's decision on how to exercise his discretion under the Act on
a consistent comprehensive basis.
We decline to include additional regulatory text requiring
documentation of our rationale. As discussed in both the 2020 and 2025
proposed rules, and in accordance with Weyerhaeuser, the Service will
document the basis for any decision whether or not to undertake an
exclusion analysis in the final determination regarding critical
habitat for the species.
Comment 10: Some commenters expressed concern that the proposed
rule would reduce the Secretary's discretion as to whether to conduct
an exclusion analysis because it would collapse the second step (the
discretionary exclusion analysis) of the critical habitat designation
process into the first step (the requirement to take into consideration
economic and other relevant impacts). One commenter suggested the
Service include additional fact patterns that would always trigger an
exclusion analysis, such as when private property is being considered
for designation as critical habitat and when considering Federal lands
with privately held permits or licenses. Other commenters took the
contrary view, suggesting the rule should narrow the Secretary's
discretion to undertake an exclusion analysis by specifying when and
how he will exercise that discretion. Multiple commenters requested
additional clarification as to when the Secretary may exercise his
discretion to improve predictability for stakeholders and the public,
reduce complexity, and improve efficiency. Some of the commenters
requested that the rule eliminate the Secretary's discretion on this
issue by requiring the Secretary to always conduct an exclusion
analysis to determine if the benefits of exclusion outweigh the
benefits of inclusion because section 4(b)(2) of the Act requires the
Secretary to take economic and other relevant impacts into
consideration and the balancing of impacts in the exclusion analysis is
part of that consideration.
Response: As discussed in our response to Comment 3, we will
evaluate on a case-by-case basis any information that is submitted by a
proponent of an exclusion to determine whether they have presented
credible information regarding the existence of a meaningful economic
or other relevant impact supporting a benefit of exclusion for that
particular area or the Secretary otherwise decides to exercise
discretion to evaluate any particular area for possible exclusion.
These regulation revisions neither alters the structure of section
4(b)(2) nor collapses the two sentences together--it just describes how
and when the Secretary will exercise the discretion to undertake an
exclusion analysis. This framework facilitates the transparent and
consistent implementation of the statute. We decline to provide
additional specificity at 50 CFR 17.90(c)(2) regarding when the
Secretary may exercise his discretion to undertake an exclusion
analysis. We will document in final rules how the Secretary has
exercised his discretion whether to undertake an exclusion analysis.
Comment 11: Commenters requested that the regulation include a
definition of ``meaningful'' economic impacts and a description of
their scope, along with a requirement to use a quantitative economic
assessment whenever possible. At least one commenter noted that even
minimal economic impacts should be considered meaningful because they
could outweigh the benefit of designation if the area provides low
conservation value. Additionally, some commenters requested that only
economic impacts in a defined area and only those tied to Federal
actions should be considered. Multiple commenters stated that economic
analyses should account for localized impacts, particularly on rural
communities and private landowners, and evaluate consequences at the
county level rather than only statewide or national scales, especially
given concerns about energy development and county revenues.
Response: We decline to define ``meaningful,'' as we intend it to
have its plain-language meaning. We included the word to indicate that
evidence of only de minimis impacts of designating a particular area
will not trigger an exclusion analysis for that particular area. Our
consideration of economic or other relevant impacts includes an
assessment of the probable impacts of a designation. We evaluate
specific land uses or activities and projects that may occur in the
area of the critical habitat. These impacts are considered part of the
benefits of exclusion and are balanced against the benefits of
inclusion which may include the importance or conservation value of a
particular area. When considering the economic impacts of critical
habitat designations, we follow the guidance and best practices set out
in E.O.s 12866 and 13563, as well as OMB Circular A-4. Those guidelines
direct Federal agencies to assess the costs and benefits of available
regulatory alternatives in quantitative (to the extent feasible,
including monetization) and qualitative terms.
Consistent with these E.O. regulatory analysis requirements, our
effects analysis under the Act may take into consideration impacts to
both directly and indirectly affected entities, where practicable and
reasonable. To determine whether the designation of critical habitat
may have an economic effect of $100 million or more in any given year,
which would trigger section 3(f)(1) of E.O. 12866, we use a screening
analysis to assess whether a designation of critical habitat is likely
to exceed this threshold. This analysis can also assist with
compilation of information that may be useful for exclusion analyses
under section 4(b)(2).
As part of this process, we first develop an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from a proposed designation of critical habitat. The
information contained in our IEM is then used to develop the screening
analysis of the probable effects of the designation of critical
habitat. The screening analysis is used to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
We invite public comment on both the IEM and screening analysis, which
are made available in the docket accompanying each proposed critical
habitat designation. One purpose of the screening analysis is to filter
out particular geographic areas of critical habitat that are already
subject to regulation due to the presence of the listed species or
other similar listed species and critical habitat and are, therefore,
unlikely to incur more than de minimus incremental economic impacts.
Ultimately, the screening analysis allows us to focus our analysis on
evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
screening analysis combined with the information contained in our IEM
constitute our
[[Page 45670]]
draft economic analysis of a proposed critical habitat designation.
During the development of our draft economic analysis, we consider
information at the scale available to us. With regard to including
localized economic impacts, we have and will continue to conduct our
exclusion analyses on the scale relevant for the analysis and based on
the credible information available. We develop and share a draft of the
IEM with our Federal partners that considers potential economic impacts
requesting information on whether a Federal nexus may exist triggering
future section 7 consultations. We request information on specific
projects and the potential impacts of designations of critical habitat.
When we consider potential economic impacts, we also acknowledge there
may be effects to land values in areas that are designated critical
habitat which may lead to an increase or a decrease in property values
(see Comment 15 below).
Our draft economic analysis is only one aspect of our exclusion
process. When available at the proposed rule stage, we also describe
exclusions we are considering and solicit public comments on specific
information that may inform those potential exclusions and other
potential impacts unknown to us at the time of the proposed
designation. We evaluate, on a case-by-case basis, any information
submitted by a proponent of an exclusion to determine whether credible
information is provided regarding the impact and whether the benefits
of exclusion are presented at the appropriate scale. We will conduct a
discretionary exclusion analysis when we receive a request with
credible information regarding the existence of a meaningful economic
or other relevant impact supporting a benefit of exclusion for that
particular area or when we otherwise decide to exercise our discretion
to evaluate any particular area for possible exclusion. We can then
refine our consideration of the relevant impacts with information
provided during a public comment period for a given rulemaking.
Comment 12: Commenters stated that the phrase ``credible
information'' was ambiguous and requested the Service provide a
regulatory definition, outline a clear process for soliciting this
information, and clarify how this information will be evaluated.
Commenters added that the proposed ``credible information'' standard is
subjective, resulting in an unnecessary burden on the Service to
perform more exclusion analyses with limited resources. Multiple
commenters called for clear procedures on submission of credible
information, documentation of decisions, interim steps to inform
proponents whether their information qualifies, and procedures for
managing confidential business data and sensitive, confidential, or
national security information. Others suggest replacing the term
``credible information'' with ``best available data.'' However, some
commenters noted that the standard allows the Service discretion and
flexibility and recommended avoiding a regulatory definition or formal
submission requirements.
Response: As stated in the 2025 proposed rule, ``credible
information'' refers to information that constitutes a reasonably
reliable indication regarding the existence of a meaningful economic or
other relevant impact supporting a benefit of exclusion for a
particular area. We do not consider speculative, erroneous,
intentionally misleading, or unsupported information to be credible
information and will use our best professional judgment to evaluate all
information critically before incorporating it into any exclusion
analysis. Also, as stated in response to Comment 11, above,
``meaningful'' indicates evidence of more than de minimis impacts of a
proposed designation that would trigger an exclusion analysis. Our
consideration of economic or other relevant impacts includes an
assessment of the probable impacts of a designation. We decline to
further define ``credible information'' in regulation.
We also decline to replace the phrase ``credible information'' with
``best available data,'' as section 4(b)(2) of the Act already requires
that ``[t]he Secretary shall designate critical habitat . . . on the
basis of the best scientific data available. . . .'' In determining
what constitutes ``credible information,'' we will look at whether the
proponent has provided factual information in support of the claimed
impacts. We use our IEM and screening analysis to help determine
whether any economic impact information meets the credible information
standard and, when appropriate, to confirm or rebut information that is
provided by a proponent of an exclusion.
Comment 13: Commenters expressed both support and concern for
identifying specific eligible proponents who can submit credible
information. Some expressed concerns that an inclusive list of eligible
proponents will result in outsized influence from non-conservation
stakeholders with no biological expertise. Some commenters noted that
the non-exhaustive list is currently focused on those with legal rights
to use Federal lands. They suggest expanding the list to include
proponents not engaged with a Federal entity that may be affected by
critical habitat designations, including private property, counties,
and industry. Others questioned whether applicants of Federal permits
or funding should be treated the same as active Federal permittees or
lessees, since applications do not constitute a Federal nexus or
commitment.
Multiple commenters expressed concerns that corporate or industry
actors could use proprietary, unverifiable data to influence decisions,
overshadowing scientific integrity. These commenters note that using
information from entities with direct financial interests over
independent science undermines the intentions of the Act.
Response: We will evaluate any information provided from outside
entities on a case-by-case basis and will decide whether to conduct an
exclusion analysis based on whether the proponent of an exclusion has
presented credible information regarding a meaningful impact supporting
a benefit of exclusion. All information submitted to us in support of
exclusion will be subject to the credible information standard. Under
the credible information standard, an impact must be meaningful to
justify an exclusion. It is likely that some submissions will not meet
this standard; each will be reviewed individually to determine if
credible information shows a meaningful impact, including information
from proponents of an exclusion. With regards to Federal applicants,
anyone can submit credible information regarding meaningful impacts of
a critical habitat designation and request an exclusion, regardless of
whether they may or may not have a future Federal nexus.
Approach To Conducting Discretionary Exclusion Analyses (Sec.
17.90(d))
Comment 14: Some commenters supported adding the requirement that
the Service always exclude areas from critical habitat when the costs
of designating areas (i.e., benefits of exclusion) outweigh the
benefits of designating those areas as critical habitat, while others
said that the proposed process would prioritize economics over species
protection. Some were concerned that the proposed process for analyzing
potential exclusions would base critical habitat exclusion decisions on
analyses of incomparable ecological benefits with economic costs and
could result in prioritization of economic and
[[Page 45671]]
administrative impacts over biological value and conservation benefit.
Multiple commenters noted that the proposed regulation text did not
sufficiently define benefits of critical habitat and others recommended
that we clarify that benefits cannot be speculative. Additionally, some
commenters requested that we determine the monetary value of species
and habitats according to the ecosystem services they provide as a way
to directly compare the economic costs of designation with biological
benefits (some referencing OMB Circular A-4 and Natural Resource Damage
Assessment valuation methods).
Response: When identifying the areas that meet the definition of
``critical habitat,'' Congress expressly prohibited the Secretaries
from using anything other than the best scientific data available.
However, Congress also expressly required the Secretaries to consider
economic impacts, national security impacts, and other relevant impacts
before finalizing the critical habitat designation. Thus, Congress
intended us to consider both the biological needs of a species as well
as economic and other impacts when designating critical habitat.
As described in the 2020 proposed rule, once the Secretary has
identified and considered economic, national security, and other
relevant impacts, he has discretion in how to determine whether the
benefits of excluding a particular area from the designation outweigh
the benefits of including that area in the designation. Regarding the
comments about clarifying the benefits of critical habitat, we are not
limited to considering the examples included in this rule. If the facts
indicate that there are economic benefits from including a particular
area in the designation, we would consider those benefits, where
appropriate. In situations where economic benefits are relevant, we
generally describe two broad categories of benefits of inclusion of
particular areas of critical habitat: (1) those associated with the
primary goal of species conservation and recovery, and (2) those that
derive from the habitat conservation measures to achieve this primary
goal. We may lack specific information to quantify the use or non-use
benefits associated with critical habitat designations such as
recreation, wildlife viewing, or ecosystem services that may result
from critical habitat designations, but discuss them qualitatively, as
per OMB Circular A-4 guidance. As a result, we focus our analysis of
benefits of inclusion qualitatively to describe the conservation value
of the particular area of critical habitat as weighed against the
benefits of exclusion.
Comment 15: Commenters stated that impacts considered in the
economic or exclusion analyses should be tied to the probability of
Federal nexus, as critical habitat designations affect only Federal
agency actions or federally funded or permitted activities. Conversely,
at least one commenter suggested that the Service must make clear that
we intend to adequately analyze perceptional effects to land values in
its exclusion analyses. They suggested that it is widely recognized
that a critical habitat designation will immediately reduce the value
and damage the salability of any private property within its boundaries
due to public recognition of the potential burdens that flow from the
designation of critical habitat, citing Auffhammer et al. (2020,
entire) and Klick and Ruhl (2020, entire). They also suggest that while
we acknowledge this phenomenon, we generally fail to quantify or
meaningfully analyze impacts from perceptional effects when making
exclusion decisions under section 4(b)(2).
Response: Critical habitat receives protection under section 7 of
the Act through the requirement that each Federal action agency ensure,
in consultation with the Service, that any action they authorize, fund,
or carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The section 7-related
economic costs solely due to the critical habitat designation may
include: costs of increased administrative efforts that result from the
designation; costs of any project delays due to consideration of
critical habitat; costs of conservation measures, including costs of
reasonable and prudent alternatives adopted by Federal action agencies
for consultations that conclude that the proposed action is likely to
destroy or adversely modify critical habitat; and costs of
discretionary actions that Federal agencies and applicants/permittees/
project proponents or others may undertake due to the critical habitat
designation.
However, within our draft economic analysis, we acknowledge
incremental costs of critical habitat designations can also occur
outside of the section 7 consultation process. These types of costs
include triggering additional requirements or project modifications
under state laws or regulations, and perceptional effects on land
values. These types of costs may occur even when activities do not have
a Federal nexus for consultation. In a 2023 review (Paterson and
Flight, entire) of all known studies on the potential property value
impacts of critical habitat, some studies identified negative property
value effects of critical habitat designation (List et al. 2006,
entire; Auffhammer et al. 2020, entire; and Klick and Ruhl 2020,
entire), while others did not (Melstrom 2021, entire; and Mamun et al.
2023, entire). Further, some found that critical habitat can positively
affect property values (Zabel and Paterson 2011, entire; Mamun et al
2023, entire). Mamun et al. (2024, entire) found that, at a national
level on average, critical habitat designation has ``little to no
effect'' on values for developed and undeveloped properties. They also
examined several subsets of, or individual species', critical habitat
designations (e.g., riparian species, terrestrial animals, plants,
jaguar, Gunnison sage-grouse) to investigate possible changes in land
values and found mixed results with some positive and some negative
effects on developed or undeveloped parcels. The impact of a
designation of critical habitat on parcel prices cannot be reduced to a
simple, consistent narrative (Mamun et al. 2024, p. 169). In general,
the literature suggests that the potential for property value impacts
is species-specific and not generalizable to all critical habitat
designations. Therefore, while effects on property values are possible,
the likelihood, magnitude, and duration of such effects for any given
designation are uncertain. Over time, as public awareness of the
potential regulatory burden placed on designated lands evolves,
particularly where no Federal nexus compelling a section 7 consultation
exists, the effect of critical habitat designation on property values
may attenuate. Existing literature provides little specific insight
into the time horizon of potential property value effects. However,
Mamun et al. (2024, p. 160) observed that, nationally, parcel values
fell just before critical habitat was proposed and then strongly
rebounded soon after the finalized critical habitat designation.
Further, the availability of species-specific or area-specific
information is often lacking, and it is not possible to quantify or
monetize with any accuracy. Therefore, our draft economic analyses
generally do not quantify the impacts of perceptional effects of
critical habitat designations due to the fact- and species-specific
nature of these effects; however, we routinely address and consider
information provided through public comments to evaluate the validity
and likelihood of the impacts.
Comment 16: Commenters suggested an apparent inconsistency between
suggesting that economics are outside of
[[Page 45672]]
the Service's area of expertise in the proposed rule compared to our
recent proposed revisions to protective regulations for threatened
species (90 FR 52592, November 21, 2025) requiring the Service to
conduct economic analyses.
Response: The Service routinely considers economic impacts of
critical habitat (see Response to Comment 11). To support this required
consideration of impacts of the designation of critical habitat, we
contract with economists to ensure the information we base our
consideration on is robust, thorough, and meets the requirements under
E.O. 12866 and OMB Circular A-4. This rulemaking does not change our
overall approach. However, we recognize that others may have expertise
about their specific parcels and situation and we will consider that
information along with the information in our draft economic analysis.
We acknowledge that the Service will consider impacts of 4(d) rules and
we may consult with economists as part of that effort as well.
Comment 17: Commenters provided both support for and opposition to
the provision at 50 CFR 17.90(d)(1) to assign the weight of benefits of
inclusion or exclusion based on who has the expertise. Some commenters
supported this provision because it allows for engagement from the
public and stakeholders that will allow them to be part of the process
and provide their firsthand knowledge. Some commenters supported the
provision to weigh nonbiological impacts in accordance with information
provided by State or local governments because these entities have
special expertise that should be included in an exclusion analysis.
Other commenters expressed support for allowing outside entities to
provide information on economic impacts of the designation of critical
habitat because they suggest information from outside entities would
improve FWS's economic analyses, which currently do not provide enough
granularity to allow the public to understand the impacts.
However, some commenters stated that it is unclear how the Service
will determine if someone is an expert or what constitutes firsthand
knowledge. Some commenters stated that the proposed rule would give too
much discretion to the Secretary in assigning weights and ultimately
deciding if an area is excluded, which would contradict congressional
intent to afford imperiled species ``the highest of priorities.''
Others were concerned that the broad discretion that the proposed rule
gives to the Secretary in assigning weights to experts in nonbiological
fields of knowledge runs the risk of placing disproportionate weight on
the expertise of entities with private interests whose ultimate goal
may not be conservation. Commenters expressed concern that this
provision would inappropriately presume the validity of such
information, which could include speculative economic analyses because
the rule incentivizes inclusion of impacts provided by self-interested
parties.
Commenters state that the proposed framework opens the door for
industry influence, undermining the Act's mandate to base decisions
solely on science. Commenters expressed concern that incorporating
economic considerations and deferring to information from outside
experts would inappropriately delegate expert judgment and authority to
third parties who are not statutorily authorized to perform these
duties, which risks prioritizing private, economic, and political
interests over species protection. Multiple commenters disagreed with
the language ``will give weight to those benefits'' suggesting this
language infringes on the Service's regulatory discretion and amounts
to impermissible subdelegation of statutory duties, citing U.S. Telecom
Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). One commenter noted
the proposed rule forces the Service to weigh ``credible'' exclusion
requests without sufficient means to challenge cost estimates,
encouraging incomplete or even fraudulent submissions.
Some commenters found it reasonable for experts to provide
information about costs and benefits but wanted to make sure that the
Service ultimately retained the discretion to reject questionable
claims by critical habitat opponents, as well as to ``assign the
weights'' that result in the balance achieved by a particular decision
meeting legal requirements. Some commenters went further and stated
that only the Service has the expertise to determine the weight of
costs and benefits.
Response: Section 4(b)(2) of the Act requires consideration of the
economic impact, the impact on national security, and any other
relevant impact of designating any particular area as critical habitat.
The regulations set forth in this rule are intended to provide greater
transparency and certainty for the public and stakeholders. As stated
in the 2025 proposed rule, we will give weight to benefits of inclusion
or exclusion based on who has the relevant expertise. We will base
critical habitat designations on the best scientific data available,
evaluate the information provided from outside entities on a case-by-
case basis, and give weight to those benefits of inclusion or exclusion
consistent with the available information from experts, firsthand
knowledge, and the best available information that the Secretary may
have to rebut or confirm that information. We do not consider
speculative, erroneous, intentionally misleading, or unsupported
information to be the best available information and will use our best
professional judgment to evaluate all information critically before
incorporating it into any exclusion analysis. We will not be
subdelegating our statutory duties but rather more explicitly setting
out a process to consider the information from affected entities. We
continue to make critical habitat decisions based on the best
scientific data available and the Secretary's discretionary authority.
Rather than ceding the Secretary's discretion, this rule enhances
its implementation by establishing a transparent and balanced approach
in exercising that discretion. Congress gave the Secretary authority to
undertake exclusion analyses, and the Secretary delegated that
authority to the Director of the Service because the Service has the
expertise to evaluate the impact that excluding particular areas from a
critical habitat designation would have on an endangered species or
threatened species. Other relevant impacts of excluding or including
particular areas in a critical habitat designation may not be within
the Service's expertise. As some of the commenters pointed out, it is
reasonable for the Secretary to seek input from experts regarding those
other relevant impacts that are outside the scope of the Service's
expertise. This rule strikes that balance by providing for the Service
to seek input from experts and give weight to impacts accordingly,
while also making clear that the Service ultimately retains the
discretion to reject or adjust that input to the extent it is rebutted
by the best information available to the Service, including information
that the Service develops to consider economic or relevant impacts such
as the IEM (see Comment 11). By retaining that discretion for the
Service, the rule avoids putting disproportionate weight on the
expertise of entities whose ultimate goal may not be conservation.
Comment 18: Several commenters requested a clear definition for
``national security,'' with predetermined activities to avoid the use
of open-ended terms. Commenters referenced national security as both a
factor to be considered for exclusion as described in the rule and a
reason for inclusion given that ecological degradation can pose a
[[Page 45673]]
security risk (e.g., food and water security, disaster resilience).
Response: We will rely on the expertise of the Department of War,
Department of Homeland Security, or affiliated agencies to make a
determination as to what constitutes an impact to national or homeland
security. The Service does not have the expertise to determine all
activities or projects that may have national security implications;
therefore, we decline to produce a list or further define ``national
security'' in these regulations. We will continue to rely on the expert
judgment of the agencies responsible for national security and homeland
security and any reasonably detailed justification of the potential
impacts that they provide regarding a designation of critical habitat
to inform our discretionary exclusion analysis.
Comment 19: Commenters both opposed and supported the provision
clarifying when the Service will consider excluding Federal lands.
Those that expressed opposition to the proposed provision cited
sections 2(c) and 7 of the Act, which generally state that Federal
agencies shall seek to conserve listed species and use their
authorities to further the purposes of the Act. Furthermore, commenters
stated that, because section 7 of the Act requires consultation by
Federal agencies to ensure their actions are not likely to jeopardize
listed species or destroy or adversely modify their critical habitat,
Federal lands are important for species recovery. Other commenters
noted that the potential increase in exclusions of Federal lands could
be a negative signal to private landowners regarding the commitment of
Federal land managers to species recovery and section 7 consultation.
Commenters also noted that, combined with national-security exclusions
and exemptions, additional exclusion of Federal lands could skew
critical habitat designations to, and pose an economic disadvantage to,
State and private lands, especially in Western States. Commenters
further stated that administrative or transactional costs tend to be
minor and should not be a basis for exclusion.
Other commenters expressed support for the approach to Federal
lands in the proposed rule and asked that additional provisions be
added to the final rule, such as specifically including consideration
of more than section 7 transactional costs (for example, considering
impacts on the private property of a lessee or permittee). Commenters
asked for additional specificity in the types of Federal lands and
activities to be considered for exclusion; whether federally withdrawn
lands (e.g., National Forest System lands withdrawn from public entry
and reserved for Reclamation Project purposes (``withdrawn lands'')) on
which non-Federal entities are conducting activities could be
considered; and whether exclusion could apply only within a project
footprint or would extend to adjacent areas on Federal land where there
may be an effect from a project.
Response: The Act is clear in section 2(c)(1) and section 7(a)(1)
that Federal agencies shall use their authorities to further the
purposes of the Act and carry out programs for the conservation of
endangered species and threatened species, and in section 7(a)(2) that
Federal agencies must ensure their actions are not likely to jeopardize
the continued existence of listed species or result in destruction or
adverse modification of their critical habitat. However, the Ninth
Circuit held that the ``ESA's declaration of purposes and policy''
[Section 2] is a ``non-operative statement of policy that `does not
create an enforceable mandate''' (Bear Valley Mut. Water Co. v. Jewell,
790 F.3d 977, 987 (9th Cir. 2015), hereafter ``Bear Valley'').
Regardless, the final regulation does not change any of the obligations
of Federal agencies under the Act. Section 4(b)(2) of the Act does not
provide for a different standard for exclusions on Federal lands
relative to other lands.
While the standards for evaluating Federal and non-Federal lands
are the same, we will consider the extent to which consultation may
produce an outcome that has probable economic or other impacts, such as
by requiring project modifications and additional conservation measures
by the Federal agency or other affected parties, on a case-by-case
basis. Additionally, we expect to evaluate the types of activities that
are being permitted or the types of leases and activities being
conducted on Federal land, any economic benefits associated with those
leases and activities, and any potential impacts that designating the
lands as critical habitat could have on those economic benefits, as
well as the conservation value of the areas that qualify as critical
habitat, including whether the areas are occupied or unoccupied.
Regardless of inclusion or exclusion of Federal lands from a
designation of critical habitat, we recognize that Federal lands may
provide important areas for species recovery efforts.
In any exclusion analysis for Federal lands, we will consider not
only the transactional costs associated with section 7 consultations,
but also any potential costs to affected parties (including non-Federal
entities) such as changes to anticipated permits, licenses, leases, or
contracts that would stem from any project modifications that may be
required to avoid destruction or adverse modification of critical
habitat. We will now consider impacts on Federal lands the same as non-
Federal lands by considering the impacts of the designation on
applicants, permittees, or lessees. Consideration of those incremental
costs will be done on a case-by-case basis. We decline to include
additional details about what specific areas may be considered for
exclusion.
Comment 20: One commenter said the Secretary's evaluations of
proposed exclusions of critical habitat on Federal lands must be
conducted under the lens of the mandated purposes Multiple Use and
Sustained Yield Act of 1960 (MUSYA; 16 U.S.C. 528-531). The commenter
stated this act established co-equal purposes for the administration
and management of federal lands: outdoor recreation, range, timber,
watershed, and wildlife and fish conservation. These purposes are to be
achieved through ``harmonious and coordinated management of the various
resources, each with the other without impairment of the productivity
of the land.'' The prevailing interpretation of this act is that each
of the designated purposes have equal standing on federal lands.
Response: The MUSYA is not applicable to this rulemaking. The MUSYA
directs the Secretary of Agriculture on administering national forests
(U.S. v. New Mexico, 438 U.S. 696, 714 (1978)), and it does not apply
to the Department of Interior. Furthermore, the language the commenter
cites is from the portion of the MUSYA that is the declaration of
congressional policy and as stated above, does not have any legal
effect. See, for example, Bear Valley, holding that a declaration of
purposes and policy is a non-operative statement of policy that does
not create an enforceable mandate.
Comment 21: Some commenters supported the consideration of section
10(a) permitted plans and agreements such as habitat conservation
plans, safe harbor agreements, candidate conservation agreements with
assurances, or conservation benefit agreements in our exclusion
process. Commenters appreciated that we stated that the Service places
great value on the partnerships that are developed during the
preparation and implementation of conservation plans in the proposed
rule. Others requested the
[[Page 45674]]
Service always exclude all areas covered by permitted plans from
critical habitat designations and requested additional regulatory
language stating this. Commenters requested that the Service revise the
regulation to simplify the requirements for areas covered by permitted
plans to be excluded from critical habitat to bolster the confidence of
landowners, as well as incentivize participation in permitted plans.
However, several commenters shared concerns over the changed
circumstance provision which allows changing conservation measures over
time, the finite nature of the agreements, the question of whether the
lands are in a currently acceptable state for the listed entity, the
effectiveness of conservation plans, the lack of protective measures
compared to a designation, and an overall concern regarding the
durability of agreements compared to a critical habitat designation.
Response: As stated in the 2025 proposed rule in paragraph (d)(3)
and associated preamble text, we place great value on the partnerships
that are developed during the preparation and implementation of plans
and agreements that have been permitted under section 10(a) of the Act.
We anticipate consistently excluding areas covered by plans,
agreements, or partnerships, such as those listed in the 2016 policy,
as long as the conditions in paragraphs (d)(3)(i)-(iii) are met.
Because section 10(a) permits authorize take of covered species that
would otherwise be prohibited, permittees are incentivized to continue
the implementation of the measures contained in the conservation plan
and required by the associated permit following the exclusion of the
covered area. Therefore, the benefits of inclusion are generally less
than the benefits of exclusion. This is not the same fact pattern for
draft plans or agreements, and we thus would generally give little
weight to these draft agreements or unrealized or uncertain commitments
of future conservation actions in a discretionary section 4(b)(2)
exclusion analysis. The Service will always consider the plans or
agreements that have been permitted under section 10(a) of the Act on a
case-by-case basis to determine whether the benefits of exclusion
outweigh the benefits of inclusion. We have been applying these
concepts following the finalization of the 2016 policy, and our
experience is that they work well, do not impose unnecessary burden on
the Service, and provide the clarity needed for landowners and partners
to meet the exclusion requirements.
Comment 22: A commenter suggests that excluding lands operating
under a permitted agreement conflates the regulatory standard for
``take'' with the relevant standard for section 7 consultation relating
to critical habitat (i.e., whether an action is likely to ``destroy or
adversely modify'' designated critical habitat) and cited to Karuk
Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1028 (9th Cir. 2012)
(hereafter ``Karuk''), which states ``[w]hether mining activities
effectuate a `taking' under Section 9 of the ESA is a distinct inquiry
from whether they `may affect' a species or its critical habitat under
Section 7.'' The commenter suggests that equating these two distinct
standards ignores the ESA's plain language and the many independent
conservation benefits that accrue from critical habitat designation.
The commenter also suggests the proposal to exclude areas based on
permitted plans or agreements is inconsistent with the case law, and
while such plans and agreements are important for species conservation,
they are not a substitute for critical habitat designation. They cited
to NRDC, in which the Ninth Circuit rejected FWS's argument that it did
not need to designate critical habitat for the coastal California
gnatcatcher because such lands were already covered by a Natural
Community Conservation Plan (NCCP). The Ninth Circuit held that ``the
NCCP alternative cannot be viewed as a functional substitute for
critical habitat designation'' because such designation ``triggers
mandatory consultation requirements for [F]ederal agency actions
involving critical habitat'' (Id. at 1127). ``The NCCP alternative, in
contrast, is a purely voluntary program that applies only to non-
[F]ederal land-use activities'' (Id). Further, the commenter cited to
Bear Valley, in which the Ninth Circuit held that FWS properly
designated critical habitat that was also included in a habitat
conservation plan (HCP). The commenter suggests the Service has now
inexplicably reversed its position, pointing to language in the 2025
proposed rule that ``the unhindered, continued ability to maintain
existing partnerships, as well as the opportunity to seek new
partnerships with potential plan participants,'' generally outweighs
the benefits of designating areas subject to conservation plans as
critical habitat (90 FR 52592 at 52596, November 21, 2025).
The commenter also states that the Service has failed to justify
the proposed change from the 2016 policy about permitted plans that
adds the phrase ``or information provided by proponents of an
exclusion.'' They suggest this language provides an opportunity for
proponents of an exclusion--but not proponents of an inclusion--to
provide relevant information to inform critical habitat designations.
Response: As we explained above, we anticipate consistently
excluding areas covered by plans, agreements, or partnerships as long
as the conditions in paragraphs (d)(3)(i)-(iii) are met. None of the
court opinions cited by the commenter specifically address an
application of these conditions, nor provide legal justification
against this rule.
In reference to the commenter citing Karuk, we disagree with the
commenter that excluding lands operating under a permitted agreement
conflates the regulatory standards between section 7 and 9. While those
are two different standards in two different sections of the ESA,
section 4(b)(2) provides an independent standard for ``The Secretary
[to] exclude any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat.'' Also as discussed below, it is
the Service's long-standing policy that the benefits of exclusion due
to conservation plans or agreements, including the commenter's
permitted agreement, that meet certain criteria (such as the conditions
in paragraphs (d)(3)(i)-(iii)) generally outweigh the benefits of
designating areas subject to conservation plans or agreements as
critical habitat.
As for the 1997 NRDC Ninth Circuit opinion the commenter cites,
that opinion was based on a challenge to the Service's ``not prudent''
critical habitat determination made under ESA section 4(a)(3). The
Ninth Circuit language on the NCCP that the commenter provides was an
argument to the determination that a critical habitat designation was
``not prudent.'' Thus, the Ninth Circuit did not explicitly opine on
the Secretary's discretion under 4(b)(2) to exclude areas designated as
critical habitat, and the Ninth Circuit's opinion is not relevant on
the matter of critical habitat exclusion.
As for the 2015 Bear Valley Ninth Circuit opinion the commenter
cites, this rule is not a reversal on the Service's position on whether
partnership and conservation benefits generally outweigh the benefits
of designating areas subject to conservation plans or agreements as
critical habitat. In Bear Valley, the Service made a specific
determination, specific to that agreement (i.e., Western Riverside
County Multiple Species
[[Page 45675]]
HCP). That determination did not preclude the Service from future
determinations related to critical habitat exclusions, such as this
rule. In fact, it has been the Service's long-standing policy that the
benefits of exclusion due to conservation plans or agreements that meet
certain criteria (such as the conditions in paragraphs (d)(3)(i)-(iii))
generally outweigh the benefits of designating areas subject to
conservation plans or agreements as critical habitat. A lower court, in
an earlier decision, upheld the Service's exclusion of a regional HCP
and Tribal lands from critical habitat based on the preservation of
partnerships (Cntr. for Biological Diversity v. FWS, 2011 WL 13356055
(S.D. Cal. Sept. 26, 2011)).
Comment 23: Commenters both opposed and supported our consideration
of non-permitted plans for possible exclusions. Commenters suggested
that considering draft plans not yet proven effective creates perverse
incentives for landowners to develop minimal conservation plans to
avoid designation, knowing the Service will likely grant exclusions
before implementation or effectiveness can be evaluated. Commenters
also stated that the circumstances in which the Service proposes to
exclude areas covered by conservation agreements fail to account for
the actual benefit of those plans to listed species.
Commenters supporting the consideration of non-permitted plans
recognized the incentives this creates for voluntary conservation and
stated the regulation provides greater transparency and predictability
for the public and stakeholders as to what elements might be needed for
a conservation plan or agreement to serve as a basis for an exclusion.
Of those that appreciated its inclusion, some were concerned that the
Service would provide too little weight to draft voluntary agreements
and emphasized that analysis of each agreement should be based on the
past successes, on the strength of existing relationships, and on the
stage of the process (e.g., whether the draft is an early version or a
late version). Alternatively, other commenters agreed that a party must
demonstrate that the voluntary conservation plan is being implemented
consistent with its terms. Some commenters thought the factors set out
in paragraphs (d)(4)(i)-(viii) are too onerous for the Service to
consider in evaluating whether to exclude areas covered by non-
permitted plans. For example, commenters suggested, the requirement to
demonstrate ``success'' of the plan is overly broad and would place an
unreasonable threshold and that instead of attempting to measure
``success,'' the Service should instead consider whether the party is
meeting or exceeding the metrics or goals identified within the
applicable plan. Commenters stated that the regulations should provide
clear and simple procedures to meet the exclusion threshold. Commenters
suggest the Service should take the necessary steps to promote
conservation plans and bring more attention to them, not disincentivize
their use. Additionally, some commenters stated that the presumption of
exclusion should extend to agreements not permitted under section 10(a)
of the Act and that we should include regulatory text referring to
automatic exclusions of such areas so long as: (1) the agreement or
plan is being implemented in accordance with its terms; (2) the
agreement or plan contains measures that provide for the protection or
enhancement of habitat for the subject species; and (3) confirmation
that exclusion of the covered area will not result in the extinction of
the species concerned. At least one commenter urged the Service to
clarify that the existence of an active or pending voluntary agreement
constitutes credible information triggering a 4(b)(2) analysis.
Response: Adding the provision from our 2016 policy to consider
non-permitted plans for possible exclusions to our regulations is
intended to incentivize and recognize voluntary conservation efforts
that provide conservation benefits to listed species and other at-risk
species. When we consider plans, agreements, or partnerships that have
not been authorized by a permit under section 10(a) of the Act, we
evaluate a variety of factors. Paragraphs (d)(4)(i)-(viii) of the rule
provide a non-exhaustive list of these factors. We use these factors to
determine how the benefits of exclusion and the benefits of inclusion
of a particular area are affected by the existence of private or other
non-Federal conservation plans or agreements and their attendant
partnerships when we undertake a discretionary section 4(b)(2)
exclusion analysis. We have been applying these concepts following the
finalization of the 2016 policy, and our experience is that they work
well. Further, as described in the preamble to the 2025 proposed rule,
the Service is not required to be part of a non-permitted plan or
agreement to consider the area for exclusion based on that plan.
Evaluation of the success of a non-permitted plan or agreement directly
relates to the benefits of exclusion of specific areas. We value the
collaboration and conservation value provided by voluntary private or
non-Federal conservation plans or agreements. It is in that context
that we included in paragraphs (d)(4)(i)-(viii) descriptions of how we
will consider these plans in a discretionary section 4(b)(2) exclusion
analysis. Because every plan is unique, as are the specific needs of
every species, it is difficult to offer an automatic exclusion and/or a
single comprehensive analysis to cover all conservation agreements. For
this reason, the Service has set out general conditions in the final
regulation and conducts case-by-case analyses to determine whether to
exclude areas covered by non-permitted, as well as permitted, plans.
Approach To Excluding Areas (Sec. 17.90(e) Discretion)
Comment 24: We received comments that both supported and opposed
the inclusion of the phrase ``shall exclude'' in Sec. 17.90(e).
Specifically, commenters supported the conclusion that the Service will
always exclude the areas where the benefits of exclusion outweigh the
benefits of inclusion, as long as exclusion will not result in the
extinction of the listed species. Commenters stated that the proposed
provision would create a clear standard, encourage consistent and
transparent application of section 4(b)(2) of the Act, and support
reasoned decision making (Michigan v. EPA, 576 U.S. 743 (2015)). In
addition, in the view of some commenters, once the exclusion analysis
is completed, if the benefits of exclusion outweigh the benefits of
inclusion, there are no further considerations. If we did not exclude
that area, our decision would be arbitrary and capricious, lack a
rational basis, and run counter to the evidence evaluated by the
Service.
Alternatively, other commenters opposed using the words ``shall
exclude'' in Sec. 17.90(e) because those words are more restrictive
and would require the Service to automatically exclude an area from
critical habitat if we determine that the benefits of exclusion
outweigh the benefits of inclusion, regardless of the circumstances.
Commenters expressed concern that use of the word ``shall'' constituted
an arbitrary and capricious change in agency practice without
justification, citing the language in the 2016 policy (i.e., that ``the
decision to exclude is always discretionary,'' and, ``[u]nder no
circumstances is exclusion required under the second sentence of
section 4(b)(2)'') (81 FR 7226 at 7229, February 11, 2016). Commenters
expressed concern that this approach
[[Page 45676]]
would result in more exclusions and contradict the purpose of the Act
and Congress's intent that the Secretary retain discretion in
determining whether or not to exclude particular areas from critical
habitat. Commenters also expressed concern that requiring the Secretary
to exclude areas whenever the benefits of exclusion outweigh the
benefits of inclusion would allow for detrimental impacts to a listed
species' habitat as long as the species does not go completely extinct.
Response: As described in the 2025 proposed rule, and in the
Summary above, this final rule largely adopts the 2016 policy with
further clarifications in the process that FWS will use when
undertaking exclusion analyses. Using the phrase ``shall exclude'' in
this rulemaking is not inconsistent with the statements that the
commenters cite from the 2016 policy. The commenters' excerpts from the
2016 policy make clear that decisions to exclude areas from critical
habitat are discretionary under the structure and language of the
statute. The regulation does not change or contravene that fact.
Rather, this rulemaking is an exercise of the discretion referenced in
those excerpts. The Secretary is choosing to exercise his discretion in
this way to provide for transparency and certainty. Under the Act, the
Secretary could have elected to undertake exclusion analyses on a case-
by-case basis and exclude areas every time the benefits of exclusion
outweigh the benefits of inclusion. However, the approach finalized
here provides greater transparency and certainty because it explicitly
states how the Secretary will proceed when the benefits of exclusion
outweigh the benefits of inclusion. Our intent with applying the
Secretary's discretion in this way is to incentivize conservation
efforts. As we explained in the proposed rule, section 4(b)(2) of the
Act gives the Secretary the discretion to exclude areas from critical
habitat designations when certain criteria have been met. Using the
phrase ``shall exclude'' in the regulation indicates how the Secretary
is choosing to exercise his discretion, and making this choice is
neither unlawful nor contrary to the purposes of the Act. Even with the
words ``shall exclude'' in the regulation, under the statute the
Secretary can only exclude areas if he determines that the benefits of
exclusion outweigh the benefits of inclusion after considering the
conservation value or benefit of inclusion of the area weighed against
the impacts of the designation or benefits of exclusion, and the
Secretary determines that exclusion will not lead to extinction of the
species.
Comment 25: Commenters stated that using the standard ``will result
in extinction'' sets too low of a bar (e.g., may allow significant
habitat loss as long as species do not reach extinction) and may
introduce legal vulnerability by ignoring the recovery mandate of the
Act. Commenters also posed questions about whether extinction risk is
considered immediate or over time. Commenters suggested alternatives
such as ``does not preclude recovery'' or ``essential to
conservation.''
Response: The standard of ``will result in the extinction'' comes
directly from section 4(b)(2) of the Act. We decline to impose an
alternative standard in regulation. Further, conservation is explicitly
considered when determining whether or not an area should be excluded.
The Secretary must determine that the benefits of exclusion outweigh
the benefits of designating that particular area as critical habitat.
The benefits of designating critical habitat include the conservation
value or benefit that the particular area provides to the conservation
of the species.
Required Determinations and Other Legal Requirements
Comment 26: Multiple commenters point out that E.O. 14154, and the
related S.O. 3418, do not require or support the proposed rule. For
example, commenters state that the Service does not explain how the
proposed changes would reduce burdens on development of energy
resources. At least one commenter suggested that the proposed rule
should be reviewed by the Secretary and Solicitor of the Interior using
the classes of regulations criteria in section 2(a) of E.O. 14219,
``Ensuring Lawful Governance and Implementing the President's
`Department of Government Efficiency' Deregulatory Initiative.''
Response: As explained above, while E.O. 14154 initiated our
review, our goal in revising these regulations was to determine how
best to designate critical habitat for endangered species and
threatened species under section 4(b)(2) of the Act while also
considering our experience administering the Act and policy
preferences. We considered section 2(a) of E.O. 14219 and did not find
that these regulation revisions met any of those criteria. These
regulations primarily adopt and clarify the provisions in the 2016
policy and regulations at 50 CFR 424.19, which have been in place for
over a decade. These regulations reflect the Service's experience and
existing case law and intend to provide greater transparency and
certainty for the public and stakeholders.
Comment 27: Several commenters stated that we did not comply with
APA requirements. For example, commenters suggested that we did not
provide a transparent, reasoned explanation for the proposed departure
from our 2016 policy or justification supporting the 2022 recission of
the 2020 rule or a complete and transparent analysis. At least one
commenter stated that, at a minimum, the Service has not shown that
there are good reasons for the new policy (see FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009); hereafter ``FCC v. Fox'').
One commenter expressed concern about the Service's reliance on the
APA's ``good cause'' exception (suggesting that we promulgated the rule
without notice and comment and instead provided an immediate effective
date for the rule). A commenter stated the APA prohibits agencies from
segmenting actions to obscure their true impact (Delaware Riverkeeper
Network v. FERC, 753 F.3d 1304, 1307 (D.C. Cir. 2014); hereafter
``Delaware Riverkeeper Network'') and if multiple rules are released on
the same day and are functionally dependent on one another, we must
explain their interrelationship.
Response: We do not agree with the assertion that we did not
provide enough justification or logical rationale for the rule in
compliance with the APA. We published our proposal, broadly explained
our proposed revisions, explained our rationale for changes, and
explicitly asked for public comment. We have now reviewed the public
comments and in this final rule have provided responses to relevant,
significant comments. We have provided the public with our rationale
and a meaningful opportunity to comment on all aspects of the proposed
rule. Thus, the process that we used to promulgate this rule complied
with the applicable requirements of the APA. The process for revising
regulations is governed by the APA as interpreted by relevant case law,
with which the Service has complied fully.
Contrary to a commenter's assertion, we did not rely upon the APA's
``good cause'' exception and did not publish a rule with an immediate
effective date. We published notice of the proposed rulemaking in the
Federal Register (90 FR 52592, November 21, 2025), provided an
opportunity for public comment, considered the relevant matter
presented in those comments, and we have provided a rational
explanation for our action. Regarding Delaware Riverkeeper Network,
that opinion was specific to the National Environmental Policy Act and
segmented environmental review.
[[Page 45677]]
In our 2020 rule (85 FR 82376 at 82376, December 18, 2020), we
explained that we were ending our reliance on the 2016 policy and 50
CFR 424.19 to provide clarity to the Service and the public in light of
agency experience and current practices, and to respond to the Supreme
Court's decision in Weyerhaeuser. In our 2022 rescission (87 FR 43433,
July 21, 2022), we rescinded the 2020 rule because we determined that
the 2020 rule was problematic because it unduly constrained the
Service's discretion in administering the Act, potentially limiting or
undermining the Service's role as the expert agency and its ability to
further the conservation of endangered and threatened species through
designation of their critical habitats. We now find--as explained
further in our preamble to the November 21, 2025, proposed rule (90 FR
52592 at 52594)--that reinstating the regulations at 50 CFR 17.90 is
the preferable policy choice. This rule reflects the Service's
experience and existing case law. The intended effect of these
regulations is to provide greater transparency and certainty for the
public and stakeholders. This is sufficient explanation under the
Supreme Court's decision in FCC v. Fox (556 U.S. at 515), which
concludes ``it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates.''
Comment 28: Commenters expressed concern that the regulatory
changes outlined in the proposed rule are not grounded in the best
available science, allow undue influence from the regulated community,
weaken ESA mandates and protections, and are contrary to the stated
conservation purpose of the Act.
Response: We do not share the commenters' concerns. We will
continue to base critical habitat designations on the best scientific
data available, evaluate the information provided from outside entities
on a case-by-case basis, and give weight of the benefits of inclusion
or exclusion consistent with the available information from experts,
firsthand knowledge, and the best available information that the
Secretary may have to rebut that information. We do not consider
speculative or unsupported information to be credible information and
will use our best professional judgment to evaluate all information
critically before incorporating it into any exclusion analysis.
Comment 29: One commenter stated the proposed rule fails to fulfill
the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33).
Response: Our obligation to have a government-to-government
relationship with federally recognized Tribes is paramount and is
addressed by S.O.s 3206 and 3225. While S.O. 3225 discusses Alaska
Natives and other Native organizations, its purpose is to protect
subsistence rights and ways of life, and states that the Departments of
Commerce and the Interior will seek to enter into cooperative
agreements for the conservation of specific species, such as marine
mammals and migratory birds, and the co-management of subsistence uses
with these organizations.
In the Consolidated Appropriations Act of 2004 (Pub. L. 108-199,
Div. H, sec. 161), Congress required that the Director of the Office of
Management and Budget (and, subsequently, all Federal agencies) consult
with Alaska Native Corporations (ANCs) on the same basis as Indian
Tribes under E.O. 13175. Consistent with this obligation, the Service
will consult on Federal decisions that have a substantial, direct
effect on an ANC. This obligation to consult does not extend beyond the
E.O. 13175 context and does not apply here. We will continue to
collaborate with federally recognized Tribes and ANCs on a government-
to-government basis on issues related to federally listed species and
their habitats and will work with them as we administer the provisions
of the ESA.
Comment 30: Commenters suggested additional analyses are required
for our required determinations (for example, Regulatory Flexibility
Act, Federalism, Paperwork Reduction Act, E.O. 12866, and Statement of
Energy Effects). Several commenters stated that we need to complete
intra-Service section 7 consultation on the rulemaking.
Response: Regarding all required determinations for this
rulemaking, the primary change that this final rule makes is to put a
regulatory framework in place for future application. In the future,
for each critical habitat designation or revision, we will determine
whether any areas should be excluded from designation. These changes
provide transparency and clarity, and there are no identifiable,
quantifiable effects from this rule. We further explain our rationale
and compliance for each of the identified Required Determinations in
their respective sections below.
Comment 31: Multiple commenters remarked on whether aspects of this
rule are legal under the Act, whether they are the best interpretation
of the Act, and whether they are consistent with congressional intent.
Some commenters viewed aspects of the regulations as lawful and
consistent with congressional intent. These commenters pointed out that
the 2020 rule, and therefore the 2025 proposed rule, reversed the 2016
policy's impermissible de facto moratorium on section 4(b)(2) analyses
whenever a potential critical habitat area was located on Federal land.
They suggest this moratorium, which was reinstated by the 2022 rule,
was squarely at odds with section 4(b)(2)'s requirement that the
Service consider the economic and other impacts of designating critical
habitat irrespective of where areas otherwise qualifying as critical
habitat may be located. They suggest that Congress drafted section
4(b)(2) with the express intent that it would ``cause the Secretary to
be more judicious in specifying such a critical habitat, and to avoid
conflicts between [species] and Federal activities at an early stage''
(124 Cong. Rec. 38,128 (1978); H.R. Rep. No. 95-1625, at 16).
The same commenters found that for one aspect of the proposed
rulemaking, neither the 2016 policy reflected in the 2022 rescission
rule, nor the 2020 rule, reflected in the 2025 proposed rule, reflect
the ``single, best meaning'' of the Act. They suggest that weighing the
benefits of excluding an area against the benefits of including an area
in a critical habitat designation is not ``optional'' or otherwise a
matter of discretion and misreads the Supreme Court's decisions in
Weyerhaeuser and Bennett v. Spear, 520 U.S. 154 (1997) (hereafter
``Bennett''), and is at odds with Congress's intent in enacting section
4(b)(2).
Conversely, other commenters suggested that the regulations are
unlawful and inconsistent with the best reading of the Act as required
by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
(hereafter, ``Loper Bright''). For example, commenters state the
proposed rule unlawfully conflated the initial, mandatory economic
impact analysis in section 4(b)(2) with the subsequent, discretionary
critical habitat exclusion analysis, and appears to unlawfully presume
that such an exclusion analysis will occur in every case counter to
Weyerhaeuser and Bldg. Industry Ass'n of the Bay Area v. U.S. Dep't of
Com., 792 F.3d 1027 (9th Cir. 2015) (hereafter ``Bldg. Industry
Ass'n'').
Commenters also stated that we misconstrued the Supreme Court's
ruling in Loper Bright because there was nothing in the court's
decision that compels or even supports the decision to revise the
implementing regulations. Further, these commenters stated that
[[Page 45678]]
referring to the court's decision does not sufficiently justify the
Service's change in position or provide a rational basis to rely on for
the revisions to the regulations because it does not change how
agencies interpret statutes or promulgate regulations. These commenters
stated Loper Bright requires courts, when reviewing an agency action,
to determine the ``best reading'' of a statute rather than defer to an
agency's interpretation of ambiguous statutory language (603 U.S. at
400).
Response: These regulation revisions articulate when and how we
determine whether the benefits of excluding an area outweigh the
benefits of designating the area as critical habitat (exclusion
analysis). As discussed above in the SUMMARY, these regulations
primarily adopt and clarify the provisions in the 2016 policy and
regulations at 50 CFR 424.19 with a new information standard for when
we enter into a discretionary weighing analysis, a clarification of how
considerations for exclusions will be conducted for Federal lands, and
an approach to giving weight to the benefits of inclusion or exclusion
of any particular areas designated as critical habitat. We also removed
a statement from the 2016 policy that ``although the Services will
explain their rationale for not excluding a particular area, that
decision is committed to agency discretion.'' Additionally, as
discussed in our 2020 proposed rule (85 FR 55398, September 8, 2020) we
decided to revisit certain language in the preamble of the 2016 policy,
as well as certain statements in the preamble to the 2013 rule that
revised the regulations on the timing of our economic analyses at 50
CFR 424.19, to provide clarity to FWS staff and the public in light of
the Supreme Court's decision in Weyerhaeuser. At the time we developed
the 2013 rule and 2016 policy, the Services were guided by a line of
cases in which courts had held that a decision by the Services not to
exclude a particular area under section 4(b)(2) of the Act was
committed to agency discretion by law and therefore not subject to
judicial review.
In addition, regarding Weyerhaeuser, although the Supreme Court's
opinion did not require promulgation of regulations on the procedure
for exclusion analyses under section 4(b)(2) of the Act, it did
establish that decisions not to exclude a particular area of critical
habitat are judicially reviewable. See Weyerhaeuser, 586 U.S. at 25,
noting that the challenge to the Service's decision not to exclude a
particular area was a ``familiar one in administrative law that the
agency did not appropriately consider all of the relevant factors that
the statute sets forth to guide the agency in the exercise of its
discretion.'' Weyerhaeuser cited the Court's earlier decision Bennett
to justify its decision (and though Weyerhaeuser does not cite the
Ninth Circuit's 2015 Bldg. Industry Ass'n opinion, Weyerhaeuser's
holding overturns the Ninth Circuit's holding that critical habitat
exclusions are not judicially reviewable). In light of the Supreme
Court's holding that decisions not to exclude may be reviewed by courts
for abuse of discretion under section 706(2) of the APA, the Service is
of the view that the Court's decision underscores the importance of
being deliberate and transparent about how the Service goes about
making decisions about whether to exclude areas from designations of
critical habitat.
In response to the conflicting comments about whether section
4(b)(2) of the Act requires the Service to conduct weighing analyses or
to exclude an area from designation as critical habitat when the
benefits of exclusion outweigh the benefits of inclusion; regardless of
these comments, crafting these regulations that provide greater
transparency and certainty for the public and stakeholders is the most
appropriate way for the Service to administer section 4(b)(2) of the
Act and our preferred policy approach.
Comment 32: Commenters stated that the Service failed to comply
with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) because we merely solicited public comment on potential impacts
of the regulatory revisions rather than drafting an environmental
impact statement for public input. According to the commenters, this
shifts the burden to the commenters to gather and review technical
environmental and economic information during the 30-day comment
period, prejudicing their ability to comment and protect their rights
and interests. Multiple commenters asserted that a NEPA analysis was
required because the proposed regulatory revisions constitute a ``major
Federal action'' with significant environmental impacts. Some
commenters asserted that the Service needs to prepare an environmental
assessment or environmental impact statement pursuant to NEPA for these
revisions to the regulations prior to adoption of the proposed changes,
and that this rulemaking action should not be categorically excluded.
Specifically, they suggest that we need to take a hard look at the
foreseeable impacts of the regulatory changes, along with a reasonable
range of alternatives. Some commenters stated that they do not believe
that the proposed regulation changes are merely administrative or
procedural actions, nor would result in environmental effects that are
``too broad or speculative'' for analysis. Some commenters noted
``extraordinary circumstances'' preclude use of a categorical
exclusion; for example, those having significant impacts on species
listed, or proposed to be listed under the Actor having significant
impacts on designated critical habitat for these species (43 CFR
46.215(g)).
Commenters stated that NEPA did not permit the Services to consider
each of the ESA rule changes proposed on November 21, 2025,
independently and the Services were instead required to consider these
four regulatory actions, along with the ``harm'' rule, collectively to
avoid improperly segmenting their actions and obscuring the full
environmental consequences of deregulation.
Response: NEPA establishes procedures for agencies to follow to
determine the level of NEPA review (42 U.S.C. 4336). The Service
elected to invite the public to provide comments on whether the
proposed regulations may have a significant impact on the human
environment, consistent with our past practice in promulgating the 2020
rule. This approach did not place a burden on commenters to develop
technical analyses, as one commenter suggested, nor deprive or limit
their ability to participate in the comment period effectively. There
is no requirement under NEPA to make any draft environmental document
or categorical exclusion documentation available to the public for
comment. Exceeding the statutory minimum requirements here and allowing
public input on our NEPA compliance does not violate NEPA.
The Service also voluntarily solicited input from the public on the
extent to which the proposed rule fell within a categorical exclusion.
Per NEPA, agencies must prepare EAs for actions that do not have a
reasonably foreseeable significant effect on the quality of the human
environment (or if the significance of the effect is unknown) unless,
inter alia, the action is excluded under one of the agency's
categorical exclusions (42 U.S.C. 4336(b)(2)). We have complied with
NEPA by determining that the rule is covered by a categorical exclusion
found at 43 CFR 46.210(i). We explained this determination in an
environmental action statement (EAS) that is posted in the docket for
this final rule. As explained in the EAS, this rulemaking primarily
provides the procedure for
[[Page 45679]]
excluding areas from a critical habitat designation but does not apply
this procedure to any species' designation; it is not until we are in
the process of determining what to designate as critical habitat that
this procedure applies to that species. Because the revisions are
intended to clarify, interpret, and implement portions of the Act
concerning procedures for excluding critical habitat for endangered
species or threatened species, we consider the action to be
fundamentally administrative, technical, or procedural in nature. We
determined that none of the extraordinary circumstances apply to this
rulemaking. We appreciate that commenters may have preferred an
environmental document that analyzed a range of alternatives, but
because we have a categorical exclusion that can be applied to this
action, we did not prepare an EA nor was an EIS required, as set forth
above.
As explained more fully in our categorical exclusion document, this
rulemaking clarifies the procedures and criteria used for designating
or revising critical habitat under section 4 of the Act but does not
apply these procedures to any species. As a result, the revisions to
our regulations are of an administrative, technical, legal or
procedural nature and none of the extraordinary circumstances apply
(see Required Determinations, below, and our supporting NEPA
documentation at available at https://www.regulations.gov at Docket No.
FWS-HQ-ES-2025-0048). To the extent that some commenters assert that
the rules are ineligible for these categorical exclusions because they
are substantive and non-ministerial, such characteristics are not the
focus of the agency's categorical exclusion.
Lastly, we disagree with comments stating that the Services were
required to consider all four ESA regulatory provisions proposed on
November 21, 2025, as well as the rule to rescind the Services'
definition of ``harm'' under the ESA, in one environmental document to
avoid improperly segmenting their actions. Each of these rules are
separate actions and are not dependent on one another, i.e., any one of
the individual rulemaking actions could proceed without any of the
others and are not an interdependent part of a larger Federal action.
Even within each of the separate, individual rulemaking actions, the
regulatory provisions that are subject to revision can be severable
from other regulatory provisions addressed in the same rulemaking
action. Although each of the four regulations proposed on November 21,
2025, followed a review initiated by E.O. 14154 and S.O. 3418, none of
these Executive or Cabinet-level orders are exclusively directed at the
ESA and none of the regulations being finalized directly rely on these
orders for the specific revisions we are now finalizing in this rule.
We also note that two of the rules that the commenters identified
(including this rule) are only applicable to FWS could not
appropriately be evaluated by NMFS in any NEPA document, as NOAA and
the Department of Commerce do not have decision-making authority over
rules that apply only to other agencies. See NOAA Companion Manual at
34 that defines ``connected action'' in relevant part as ``a separate
Federal action within the authority of NOAA . . .'').
Other
Comment 33: Some commenters requested that we address in the final
rule that there is a requirement to conduct NEPA analyses when
designating critical habitat within the Tenth Circuit citing Catron
Cnty. Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1436
(10th Cir. 1996) (hereafter ``Catron County''). This addition to the
rule would clarify that interested parties have a chance to participate
in and meaningfully contribute to the environmental analysis underlying
future critical habitat designations.
Response: Regulations adopted pursuant to section 4(a) of the Act
are exempt from NEPA and do not require an environmental analysis under
NEPA. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This includes listing, delisting, and reclassification rules,
as well as critical habitat designations. In a line of cases starting
with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the
courts have upheld this position. However, as the commenter suggested,
when any of the areas that meet the definition of ``critical habitat''
for the species are in States within the Tenth Circuit, we had been
required to undertake a NEPA analysis for that critical habitat
designation consistent with the Tenth Circuit ruling in Catron County
Board. We have recently updated our NEPA practice (91 FR 8738, February
24, 2026), and note that the February 2026 Department of Interior
Handbook of National Environmental Policy Act Implementing Procedures
(516 DM 1; https://www.doi.gov/media/document/doi-nepa-handbook) states
that critical habitat designations is not a ``major federal action,''
Section 1.1(a)(6)(iii)(D)(d) provides that ``Certain decisions made by
the U.S. Fish and Wildlife Service under the Endangered Species Act do
not require NEPA compliance: . . .(d) Determinations whether to
designate, amend, or rescind critical habitat.'' Therefore, we no
longer conduct NEPA analyses for any critical habitat designations or
revisions, including in the Tenth Circuit.
Comment 34: Commenters expressed concern that the proposed rule
would result in inconsistent regulations in which the FWS follows one
set of guidelines and NMFS retains their current regulations resulting
in potential conflict and lack of transparency.
Response: In some situations, the regulated community is best
served if the agencies have the same regulations and policy. However,
in other situations it may make sense for the FWS and NMFS to apply
their own regulations to be responsive to the needs and circumstances
of the species for which they are responsible. We find in this
particular instance that differing regulations is the preferred
approach.
Comment 35: Several commenters expressed concern about the
Service's resource constraints and potential delays associated with the
rule. They suggested that expanded weighing analyses could result in
slower critical habitat designations, undermining State and partner
planning that relies on timely, clear designations. Alternatively,
commenters recommended longer public comment windows for future
critical habitat rulemakings and commitments to update and reopen
analyses when new exclusion requests or data arrive. Commenters
suggested that the Service should strengthen in-house expertise in
economics, national security, and ``other impacts'' to put the agency
in a position to better defend its determinations.
Response: The mandatory requirements to designate critical habitat
according to section 4(b)(6)(A) and section 4(b)(2) of the Act will not
change following the finalization of these regulations. These
regulations primarily adopt and clarify the provisions in the 2016
policy and regulations at 50 CFR 424.19. These revisions articulate
when and how we determine whether the benefits of excluding an area
outweigh the benefits of designating the area as critical habitat
(exclusion analysis). This rule will provide greater transparency and
certainty for the public and stakeholders. The provisions added to the
regulations will not create additional workload for the Service but
will help to ensure that credible information is considered in making
decisions related to exclusions of particular areas from critical
habitat designations. We have a history of
[[Page 45680]]
contracting support related to our consideration of economic impacts of
a critical habitat designation, and this regulation revision will not
change that practice. We find that it is more efficient and effective
to contract support from experts in the field who stay informed and
abreast of new techniques and availability of data sources than relying
on internal staff to complete these analyses. We do not find it
appropriate or necessary for the Service to become experts in national
security impacts or all other relevant impacts of designation of
critical habitat.
Comment 36: At least one commenter requested that we limit critical
habitat designations to only regulations that are consistent with the
U.S. Constitution and requested we make specific commitments concerning
the content of future rulemakings.
Our Response: The Service only promulgates regulations that are
consistent with the U.S. Constitution. The specific content of future
individual rulemakings is beyond the scope of this rulemaking.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget will review all
significant rules. OIRA has determined that this rule is significant
and has reviewed it. This rule is considered an E.O. 14192 deregulatory
action and we anticipate cost-savings from the future implementation of
the rule; however, cost-savings cannot be projected or quantified.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
E.O. 13653 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this final rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II
of Pub. L. 104-121, March 29, 1996), whenever a Federal agency is
required to publish a notice of rulemaking for any proposed or final
rule, it must prepare, and make available for public comment, a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of an agency, or that person's
designee, certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
RFA to require Federal agencies to provide a statement of the factual
basis for certifying that a rule will not have a significant economic
impact on a substantial number of small entities.
We certified at the proposed rule stage that the proposed rule
would not have a significant economic impact on a substantial number of
small entities (90 FR 52592, November 21, 2025). Nothing in this final
rule changes the basis for that conclusion, and we received no
information that changes the factual basis of this certification. The
following discussion explains our rationale.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. This rulemaking revises the Service's regulations
designating critical habitat for endangered and threatened species
under the Act. The Service is the only entity that is directly affected
by this regulation change at 50 CFR part 17 because changes to this
section of the Code of Federal Regulations merely describe how we will
designate critical habitat under the ESA. External entities, including
any small businesses, small organizations, or small governments, are
not directly regulated by this rule and thus will not experience any
direct economic impacts from this rule. Therefore, we certify that this
rule will not have a significant economic effect on a substantial
number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(a) On the basis of information contained above in the Regulatory
Flexibility Act section, this rule will not ``significantly or
uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act that this rule will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities. A small government agency plan
is not required. As explained above, small governments will not be
affected because the rule will not place additional requirements on any
city, county, or other local municipalities.
(b) This rule will not produce a Federal mandate on State, local,
or Tribal governments or the private sector of $100 million or greater
in any year; that is, this rule is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This rule will impose
no obligations on State, local, or Tribal governments.
Takings--E.O. 12630
In accordance with E.O. 12630, this rule will not have significant
takings implications. This rule will not directly affect private
property, nor will it cause a physical or regulatory taking. A takings
implication assessment is not required because this rule (1) will not
effectively compel a property owner to suffer a physical invasion of
property and (2) will not deny all economically beneficial or
productive use of the land or aquatic resources. This rule will
substantially advance a legitimate government interest (conservation
and recovery of endangered species and threatened species) and will not
present a barrier to all reasonable and expected beneficial use of
private property.
Federalism--E.O. 13132
In accordance with E.O. 13132, this rule does not have significant
federalism effects. A federalism summary impact statement is not
required. This rule pertains only to designation of critical habitat
under the ESA and will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
Civil Justice Reform--E.O. 12988
This rule will not unduly burden the judicial system and meets the
applicable standards provided in sections 3(a) and
[[Page 45681]]
3(b)(2) of E.O. 12988. This rule will clarify factors for designating
critical habitat pursuant to the ESA.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of (``Government-to-
Government Relations with Native American Tribal Governments''; 59 FR
22951, May 4, 1994), E.O.13175 (``Consultation and Coordination with
Indian Tribal Governments''), the President's memorandum of November
30, 2022 (``Uniform Standards for Tribal Consultation;'' 87 FR 74479,
December 5, 2022), and the Department of the Interior's manual at 512
DM 2, we considered possible effects of this rule on federally
recognized Indian Tribes and Alaska Native Corporations (ANCs). An
informational webinar was held for federally recognized Tribes on
December 3, 2025, and in response to Tribal interest, the Services held
a question and answer session for federally recognized Tribes on
December 10, 2025, to provide additional time for Tribal input and
questions. After the opening of the public comment period, we received
comments, requests for coordination, or requests for government-to-
government consultation from multiple Tribes.
The Service has reached a conclusion that the changes to these
regulations do not directly affect specific species or Tribal lands.
This rule revises regulations for excluding critical habitat for
endangered species and threatened species pursuant to the Act. This
rule is general in nature and does not directly affect any specific
Tribal lands, treaty rights, or Tribal trust resources. Therefore, we
conclude that this rule does not have Tribal implications under section
1(a) of E.O. 13175. Thus, formal government-to-government consultation
is not required by E.O. 13175 and related policies of the Department of
the Interior. These regulations will not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
We will continue to collaborate with Tribes and ANCs on issues related
to federally listed species and their habitats and work with them as we
administer the provisions of the Act; see Joint S.O. 3206 (``American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act,'' June 5, 1997)).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We analyzed this rule pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.), the Department of the Interior
regulations on Implementation of the National Environmental Policy Act
(43 CFR part 46), and the Department of the Interior Handbook of
National Environmental Policy Act Implementing Procedures (516 DM 1).
Federal agencies must prepare an environmental impact statement for a
proposed major Federal action, that would have a reasonably foreseeable
significant effect on the quality of the human environment (42 U.S.C.
4332(c)). We have determined that a detailed statement under NEPA is
not required because the rule is covered by a categorical exclusion; we
prepared an Environmental Action Statement accordingly. Please see our
supporting NEPA documentation, available at https://www.regulations.gov
at Docket No. FWS-HQ-ES-2025-0048, for additional details.
We find that the categorical exclusion found at 43 CFR 46.210(i)
applies to these regulation changes. At 43 CFR 46.210(i), the
Department of the Interior has found that the following category of
actions do not individually or cumulatively have a significant effect
on the human environment and are, therefore, categorically excluded
from the requirement for completion of an environmental assessment or
environmental impact statement: Policies, directives, regulations, and
guidelines that are of an administrative, financial, legal, technical,
or procedural nature; or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case. We have also considered whether any of the extraordinary
circumstances described in 43 CFR 46.215 apply, and we did not identify
any extraordinary circumstances that apply to this rulemaking.
Energy Supply, Distribution or Use--E.O. 13211
E.O. 13211 (Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use) requires agencies to
prepare statements of energy effects ``to the extent permitted by law''
when undertaking actions identified as significant energy actions (66
FR 28355, May 22, 2001). E.O. 13211 defines a ``significant energy
action'' as an action that (i) is a significant regulatory action under
E.O. 12866 (or any successor order); and (ii) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy. The revised regulations are not expected to affect energy
supplies, distribution, and use. Therefore, this action is not a
significant energy action, and there is no requirement to prepare a
statement of energy effects for this action.
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
In developing this rule, the FWS is acting in our unique statutory
role as administrator of the Act and is engaged in a legal exercise of
interpreting the standards of the Act. The FWS's administration of the
Act is not in itself subject to the Act's provisions, including section
7(a)(2). The FWS has a historical practice of issuing its general
regulations under the ESA without undertaking section 7 consultation.
This practice accords with the plain language, structure, and purposes
of the ESA, which does not place a consultation obligation on the FWS's
administration of the Act. Although the FWS consults on actions through
intra-agency consultations where appropriate (e.g., issuance of section
10 permits and actions under statutory authorities other than the ESA),
in those instances the FWS is acting principally as an ``action
agency'' implementing provisions of the Act or other statutes. Here, by
contrast, the FWS is acting solely in our role as administrator of the
ESA; we are also not administering the Act to propose or take a
specific action. The FWS is carrying out the most fundamental exercise
of our role as administrator of the ESA, and the Act cannot reasonably
be construed as requiring the FWS to ``consult'' with ourselves under
section 7(a)(2) in such cases.
Authority
We issue this rule under the authority of the Endangered Species
Act, as amended (16 U.S.C. 1531 et seq.).
[[Page 45682]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
For the reasons discussed in the preamble, we hereby amend part 17
of chapter I, title 50 of the Code of Federal Regulations as set forth
below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Subpart J--[Redesignated as Subpart K]
0
2. Redesignate subpart J, consisting of Sec. Sec. 17.100 through
17.199, as subpart K.
Subpart I--[Redesignated as Subpart J]
0
3. Redesignate subpart I, consisting of Sec. Sec. 17.94 through 17.99,
as subpart J.
0
4. Add new subpart I, consisting of Sec. 17.90, to read as follows:
Subpart I--Considerations of Impacts and Exclusions From Critical
Habitat
Sec. 17.90 Impact analysis and exclusions from critical habitat.
(a) At the time of publication of a proposed rule to designate
critical habitat, the Secretary will make available for public comment
the draft economic analysis of the designation. The draft economic
analysis will be summarized in the Federal Register notice of the
proposed designation of critical habitat. The Secretary will also
identify any national security or other relevant impacts that the
Secretary determines are contained in a particular area of proposed
designation. Based on the best information available regarding
economic, national security, and other relevant impacts, the proposed
designation of critical habitat will identify the areas that the
Secretary has reason to consider for exclusion and explain why. The
identification of areas in the proposed rule that the Secretary has
reason to consider for exclusion is neither binding nor exhaustive.
``Economic impacts'' may include, but are not limited to, the economy
of a particular area, productivity, jobs, and any opportunity costs
arising from the critical habitat designation (such as those
anticipated from reasonable and prudent alternatives that may be
identified through a section 7 consultation), as well as possible
benefits and transfers (such as outdoor recreation and ecosystem
services). ``Other relevant impacts'' may include, but are not limited
to, impacts to Tribes, States, local governments, public health and
safety, community interests, the environment (such as increased risk of
wildfire or pest and invasive species management), Federal lands, and
conservation plans, agreements, or partnerships. The Secretary will
consider impacts at a scale that the Secretary determines to be
appropriate and will compare the impacts with and without the
designation. Impacts may be qualitatively or quantitatively described.
(b) Prior to finalizing the designation of critical habitat, the
Secretary will consider the probable economic, national security, and
other relevant impacts of the designation upon proposed or ongoing
activities.
(c)(1) Subject to paragraph (c)(2) of this section, the Secretary
has discretion as to whether to conduct an exclusion analysis under 16
U.S.C. 1533(b)(2).
(2) The Secretary will conduct an exclusion analysis when:
(i) The proponent of excluding a particular area (including, but
not limited to, permittees, lessees, or others with a permit, lease, or
contract on federally managed lands) has presented credible information
regarding the existence of a meaningful economic or other relevant
impact supporting a benefit of exclusion for that particular area; or
(ii) The Secretary otherwise decides to exercise discretion to
evaluate any particular area for possible exclusion.
(d) When the Secretary conducts a discretionary exclusion analysis
pursuant to paragraph (c) of this section, the Secretary shall weigh
the benefits of including or excluding particular areas in the
designation of critical habitat, according to the following principles:
(1) When analyzing the benefits of including or excluding any
particular area based on impacts identified by experts in, or by
sources with firsthand knowledge of, areas that may be outside the
scope of the Service's expertise, the Secretary will give weight to
those benefits consistent with the expert or firsthand information,
unless the Secretary has knowledge or material evidence that rebuts
that information. Impacts that may be outside the scope of the
Service's expertise include, but are not limited to:
(i) Nonbiological impacts identified by federally recognized Indian
Tribes, consistent with all applicable Executive and Secretary's
orders;
(ii) Nonbiological impacts identified by State or local
governments;
(iii) Impacts based on national security or homeland security
implications identified by the Department of Defense, Department of
Homeland Security, or any other Federal agency responsible for national
security or homeland security; and
(iv) Nonbiological impacts identified by a permittee, lessee, or
contractor applicant for a permit, lease, or contract on Federal lands.
(2) When analyzing the benefit of including or excluding any
particular area based on economic impacts or other relevant impacts
described in paragraph (b) of this section, the Secretary will weigh
such impacts relative to the conservation value of that particular
area. For benefits of inclusion or exclusion based on impacts that fall
within the scope of the Service's expertise, the Secretary will give
weight to those benefits in light of the Service's expertise.
(3) When analyzing the benefits of including or excluding
particular areas covered by conservation plans, agreements, or
partnerships that have been authorized by a permit under section 10 of
the Act, the Secretary will consider the following factors:
(i) Whether the permittee is properly implementing the conservation
plan or agreement;
(ii) Whether the species for which critical habitat is being
designated is a covered species in the conservation plan or agreement;
and
(iii) Whether the conservation plan or agreement specifically
addresses the habitat of the species for which critical habitat is
being designated and meets the conservation needs of the species in the
planning area.
(4) When analyzing the benefits of including or excluding
particular areas covered by conservation plans, agreements, or
partnerships that have not been authorized by a permit under section 10
of the Act, factors that the Secretary may consider include, but are
not limited to:
(i) The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of the
benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the
conservation plan.
(iii) The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate.
[[Page 45683]]
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) reviews or similar reviews occurred, and the nature of
any such reviews.
(v) The demonstrated implementation and success of the chosen
mechanism.
(vi) The degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species;
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented;
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
(e) If the Secretary conducts an exclusion analysis under paragraph
(c) of this section, and if the Secretary determines that the benefits
of excluding a particular area from critical habitat outweigh the
benefits of specifying that area as part of the critical habitat, then
the Secretary shall exclude that area, unless the Secretary determines,
based on the best scientific and commercial data available, that the
failure to designate that area as critical habitat will result in the
extinction of the species concerned.
Kevin Lilly,
Principal Deputy for Fish and Wildlife and Parks, exercising the
delegated authority of the Assistant Secretary for Fish and Wildlife
and Parks, Department of the Interior.
[FR Doc. 2026-14629 Filed 7-20-26; 8:45 am]
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