Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat

DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2025-0048; FXES11110900000-256-FF09E23000]</DEPDOC> <RIN>RIN 1018-BI76</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (FWS or the Service), propose to amend portions of our regulations for section 4 of the Endangered Species Act of 1973, as amended (Act or ESA). Specifically, we propose to 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 proposed 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 proposed rule reflects the Service's experience and existing case law. The intended effect of this proposed rule is to provide greater transparency and certainty for the public and stakeholders. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by December 22, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments and information on this document by one of the following methods: (1) <E T="03">Electronically:</E> Go to the Federal eRulemaking Portal: <E T="03">https://www.regulations.gov.</E> In the Search box, enter FWS-HQ-ES-2025-0048, which is the docket number for this rulemaking action. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment.” Comments must be submitted to <E T="03">https://www.regulations.gov</E> before 11:59 p.m. (Eastern Time) on the date specified in <E T="02">DATES</E> . (2) <E T="03">By hard copy:</E> Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2025-0048; U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803. We request that you send comments only by the methods described above. We will post all comments on <E T="03">https://www.regulations.gov.</E> This generally means that we will post any personal information you provide us (see Request for Comments, below, for more information). <E T="03">Availability of reference materials:</E> References and a document summarizing this proposed rule are available at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-HQ-ES-2025-0048. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> John Tirpak, U.S. Fish and Wildlife Service, Division of Conservation and Classification, <E T="03">john_tirpak@fws.gov,</E> 703-358-2163. 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The Endangered Species Act of 1973, as amended (hereafter referred to as Act or ESA; 16 U.S.C. 1531 <E T="03">et seq.</E> ), states that the purposes of the Act are to provide a means to conserve the ecosystems upon which endangered and threatened species (listed species) depend, to develop 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 the Federal Government shall seek to conserve endangered species and threatened species and shall use its authorities to further the purposes of the Act (16 U.S.C. 1531(c)(1)). The Secretaries of the Interior and Commerce (the “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, if finalized, would only apply to the FWS, the regulations proposed in this rulemaking would 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 we propose 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 proposed rule is intended to provide the public with a clear, transparent explanation of how we are proposing to revise the ESA regulations in 50 CFR part 17 and the opportunity to comment on these proposed revisions. We interpret our authorities under the statutory scheme consistent with the best reading of the Act as a whole. 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)). When the FWS concludes that a critical habitat designation is prudent and determinable for species listed under the Act, FWS 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 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 ( <E T="03">i.e.,</E> recovery) 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 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 we would exercise discretion to exclude areas from critical habitat designations (81 FR 7226, February 11, 2016; hereafter “2016 policy”). 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”). Then on July 21, 2022, we rescinded those regulations (87 FR 43433). We again are undertaking a revision to the regulations pertaining to exclusions of particular areas of critical habitat under section 4(b)(2) of the ESA. Executive Or ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 58k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━