Proposed Rule2024-27767
Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Contiguous U.S. Distinct Population Segment of the Canada Lynx
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 29, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to revise the critical habitat designation for the contiguous U.S. distinct population segment (DPS) of the Canada lynx (Lynx canadensis) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 19,112 square miles (49,500 square kilometers) in Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming fall within the boundaries of the proposed revisions to the critical habitat designation. We also announce the availability of an economic analysis of the proposed revised designation of critical habitat for the Canada lynx DPS.
Full Text
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[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Proposed Rules]
[Pages 94656-94680]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27767]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2024-0142; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH59
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Contiguous U.S. Distinct
Population Segment of the Canada Lynx
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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[[Page 94657]]
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise the critical habitat designation for the contiguous U.S.
distinct population segment (DPS) of the Canada lynx (Lynx canadensis)
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 19,112 square miles (49,500 square kilometers) in
Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming fall
within the boundaries of the proposed revisions to the critical habitat
designation. We also announce the availability of an economic analysis
of the proposed revised designation of critical habitat for the Canada
lynx DPS.
DATES: We will accept comments received or postmarked on or before
January 28, 2025. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by January 28, 2025.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R6-ES-2024-0142,
which is the docket number for this rulemaking. 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.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R6-ES-2024-0142, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report addendum, are available on the
Service's website at <a href="https://ecos.fws.gov/ecp/species/A073">https://ecos.fws.gov/ecp/species/A073</a>?, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R6-ES-2024-0142, or both. If we
finalize the critical habitat designation, we will make the coordinates
or plot points or both from which the maps are generated available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R6-ES-2024-0142 and on
the Service's website at <a href="https://www.fws.gov/species/canada-lynx-lynx-canadensis">https://www.fws.gov/species/canada-lynx-lynx-canadensis</a>.
FOR FURTHER INFORMATION CONTACT: Amity Bass, Field Supervisor, U.S.
Fish and Wildlife Service, Montana Ecological Services Field Office,
585 Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-5225.
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. Please see Docket No. FWS-R6-ES-2024-0142 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act
(Act), any species that is determined to be threatened or endangered
requires critical habitat to be designated to the maximum extent
prudent and determinable. Designations and revisions of critical
habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
The contiguous U.S. distinct population segment (DPS) of the Canada
lynx DPS was listed as a threatened species in 2000. We designated
critical habitat for the Canada lynx DPS in 2006 and revised the
designation in 2009 and 2014. In 2022, the Service committed in a
settlement agreement to submit to the Federal Register a proposed rule
on the revised designation of critical habitat for the Canada lynx DPS
by November 21, 2024.
What this document does. This document proposes to revise the
existing designation of critical habitat for the threatened contiguous
U.S. DPS of the Canada lynx. Because the Western United States was the
subject of a 2016 court order that found fault with our 2014 final
critical habitat rule for not designating critical habitat in Colorado
and in five National Forests in Idaho and Montana, and because we have
new scientific information on lynx habitat in the Western United
States, we are proposing to revise Canada lynx critical habitat in the
Western United States only. We are not proposing any revisions to
critical habitat in Maine and Minnesota.
The basis for our action. Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary of the Interior (Secretary) that
such areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) Specific information on:
(a) The amount and distribution of Canada lynx habitat in the
Western United States;
(b) Any additional areas occurring within the range of the species
in the Western United States that should be included in the designation
because they (i) were occupied at the time of listing and contain the
physical or biological features that are essential to the conservation
of the species and that may require special management considerations
or protection, or (ii) were unoccupied at the time of listing and are
essential for the conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change.
(2) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(3) Any probable economic, national security, or other relevant
impacts of designating any area that may be
[[Page 94658]]
included in the final designation, and the related benefits of
including or excluding specific areas.
(4) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(5) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. In particular, we are considering excluding
all Tribal lands (in Montana and New Mexico) as well as lands in (a)
Montana, managed in accordance with the Montana Department of Natural
Resources and Conservation (DNRC) Forested State Trust Lands Habitat
Conservation Plan (Montana DNRC and U.S. Fish and Wildlife Service
2010, entire), and (b) Washington, managed in accordance with the
Washington Department of Natural Resources (DNR) Lynx Habitat
Management Plan for DNR-managed Lands (Washington DNR 2006, entire). If
you think we should exclude any additional areas, please provide
information supporting a benefit of exclusion.
(6) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), our final designation may not include all areas
proposed, may include some additional areas that meet the definition of
critical habitat, or may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species. In our final rule, we will
clearly explain our rationale and the basis for our final decision,
including why we made changes, if any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
The Service listed the Canada lynx DPS as a threatened species
under the Act in 2000 (65 FR 16052, March 24, 2000). The Service first
designated Canada lynx critical habitat in 2006 (71 FR 66008, November
9, 2006), revised the designation in 2009 (74 FR 8616, February 25,
2009), and revised critical habitat again in 2014 (79 FR 54782,
September 12, 2014). The 2014 designation was challenged and in 2016
the District Court for the District of Montana held that the Service
erred by excluding Colorado and five National Forests in Montana and
Idaho from the critical habitat designation, WildEarth Guardians v.
U.S. Department of the Interior, 205 F. Supp.3d 1176 (D. Mont. 2016).
The court remanded the critical habitat designation to the Service to
reconsider. In 2017, we completed the species status assessment (SSA)
report to summarize the best available scientific information on the
status and likely future viability of the Canada lynx DPS (Service
2017a, entire). The SSA provided the scientific basis for a 5-year
review completed on November 13, 2017, in which we recommended removing
the Canada lynx DPS from the Federal List of Endangered and Threatened
Wildlife (Service 2017b, entire). Given this recommendation, on
December 20, 2017, we issued a memorandum on our section 4(f)(1)
determination regarding recovery planning for the Canada lynx that
found a recovery plan will not promote the conservation of the species
(Service 2017c, entire).
In 2020, the Service was challenged for its failure to revise
Canada lynx critical habitat in accordance with the 2016 court order.
The Service reached a settlement agreement for the date it would comply
with the 2016 court order. On April 25, 2022, the court ordered the
Service to submit a proposed revised critical habitat rule for the
Canada lynx DPS to the Federal Register by November 21, 2024, and a
final critical habitat rule within the statutory timeframe in
accordance with the settlement agreement.
On December 1, 2023, the Service completed and released an addendum
to the SSA report (Service 2023a, entire), to inform recovery planning
and critical habitat revision. We published a notice of availability of
the draft recovery plan and made it available for public comment on
December 1, 2023.
For more information on previous Federal actions concerning the
Canada lynx DPS, refer to the final listing rule published in the
Federal Register on March 24, 2000 (65 FR 16052); the clarification of
findings published in the Federal Register on July 3, 2003 (68 FR
40076); the Recovery Outline for the Contiguous United States DPS of
Canada Lynx (recovery outline; Service
[[Page 94659]]
2005, entire); the final rule designating critical habitat for Canada
lynx published in the Federal Register on November 9, 2006 (71 FR
66008); the final rule designating revised critical habitat published
in the Federal Register on February 25, 2009 (74 FR 8616); the 12-month
finding on a petition to change the final listing of the DPS of the
Canada lynx to include New Mexico published in the Federal Register on
December 17, 2009 (74 FR 66937); the proposed rule to revise the
designation of critical habitat and the boundary for the Canada lynx
DPS published in the Federal Register on September 26, 2013 (78 FR
59430); and the final rule designating revised critical habitat for
Canada lynx published in the Federal Register on September 12, 2014 (79
FR 54782). These documents and others addressing the status and
conservation of the Canada lynx in the contiguous United States may be
viewed and downloaded from the Service's website: <a href="https://ecos.fws.gov/ecp/species/A073">https://ecos.fws.gov/ecp/species/A073</a>?.
Peer Review
On December 1, 2023, a team of Service biologists, in consultation
with recognized lynx and climate experts, completed an addendum to the
2017 SSA for the Canada lynx DPS. The SSA report and addendum represent
a compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act, we solicited independent
scientific review of the information contained in the Canada lynx SSA
report addendum. We sent the SSA report addendum to five independent
peer reviewers and received five responses. Results of this structured
peer review process can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In
preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report addendum, which is the
foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from five
peer reviewers on the draft SSA report addendum. We reviewed all
comments we received from the peer reviewers for substantive issues and
new information regarding the contents of the SSA report addendum. The
peer reviewers generally concurred with our methods and conclusions.
The peer reviewers provided additional information, terminology
clarifications, suggestions to explain uncertainties, clarifications to
the explanation of our resiliency model, and other editorial
suggestions. Peer reviewer comments and suggestions were incorporated
as appropriate in the final version of the SSA report addendum (Service
2023a, entire).
Critical Habitat
Background
Critical habitat is defined in section 3(5)(A) of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
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 designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
[[Page 94660]]
Section 4(b)(2) of the Act requires that we designate critical
habitat on the basis of the best scientific data available. Further,
our Policy on Information Standards Under the Endangered Species Act
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the
Information Quality Act (section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554;
H.R. 5658)), and our associated Information Quality Guidelines provide
criteria, establish procedures, and provide guidance to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information compiled in the SSA report and information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in the 4(d) rule. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of the species. Similarly, critical habitat
designations made on the basis of the best scientific data available at
the time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of those planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Species Needs, Habitat, Ecological Requirements
A comprehensive review of the species description, biology,
taxonomy, genetics, life history, ecology, distribution, species needs,
habitat, and ecological requirements of the Canada lynx DPS is
presented in the SSA report (Service 2017a, entire) and SSA report
addendum (Service 2023a, entire). Here we present a summary of
information relevant to the physical and biological features essential
to the conservation of the species.
The Canada lynx (hereafter referred to as lynx) is a North American
wild cat that is most strongly associated with northern-latitude boreal
forests (taiga) of Canada and Alaska (McCord and Cardoza 1982, p. 729;
Agee 2000, pp. 39-41; Aubry et al. 2000, pp. 373-374; Mowat et al.
2000, p. 272). The southern peripheries of the boreal forest and lynx
range extend into the northern contiguous United States (Service 2017a,
pp. 11-12). The Canada lynx is a medium-sized cat with long legs and
large, well-furred paws, which make it well-adapted for traversing and
hunting in deep, powdery snow. Its low foot-loading (weight per surface
area of foot) is thought to provide a competitive advantage (Buskirk et
al. 2000a, p. 90; Buskirk et al. 2000b, p. 400; Interagency Lynx
Biology Team (ILBT) 2013, pp. 26, 36, 81) over other terrestrial
predators of snowshoe hares, the lynx's primary prey.
Lynx rely heavily on snowshoe hare to support survival,
reproduction, recruitment, and, therefore, population persistence
(Ruggiero et al. 2000a, p. 110; Mowat et al. 2000, p. 270; Steury and
Murray 2004, pp. 128, 136-138; Service 2005, p. 2; ILBT 2013, p. 30-34;
79 FR 54782, September 12, 2014). All aspects of lynx life history are
inextricably tied to the snowshoe hare, which comprises most of the
lynx diet throughout its range (Nellis et al. 1972, pp. 323-325; Brand
et al. 1976, pp. 422-
[[Page 94661]]
425; Koehler and Aubry 1994, pp. 75, 85; Apps 2000, pp. 358-359, 363;
Aubry et al. 2000, pp. 375-378; Mowat et al. 2000, pp. 267-268),
including the DPS (Koehler 1990, p. 848; von Kienast 2003, pp. 37-38;
Squires et al. 2004, p. 15, table 8; Moen 2009, p. 7; Vashon et al.
2012, p. 11; Olson 2015, pp. 60-69; Ivan and Shenk 2016, p. 1053).
Being highly specialized hare predators, lynx require landscapes that
consistently support relatively high hare densities (McCord and Cardoza
1982, p. 744; Quinn and Parker 1987, pp. 684-685; Aubry et al. 2000,
pp. 375-378).
The best available science, including recent research in the DPS'
range, suggests that landscape-level hare densities consistently >= 0.5
hares/hectare (ha) (0.2 hares/acre (ac)) and favorable snow conditions
(deep and persistent unconsolidated (``fluffy'') snow) for about 4
months per year are needed to support lynx occupancy, reproduction, and
recruitment (Hoving et al. 2005, p. 749; Gonzalez et al. 2007, p. 7;
Squires and Ruggiero 2007, pp. 313-314; Moen et al. 2012, pp. 352-354;
Simons-Legaard et al. 2013, pp. 567, 574-575). At the southern
periphery of lynx distribution, some places, including within the range
of the DPS, seem to be at minimum thresholds to meet these requirements
or do so inconsistently.
Lynx and snowshoe hares are strongly associated with moist boreal
forests, where winters are long, cold, and snowy (Bittner and Rongstad
1982, p. 154; McCord and Cardoza 1982, p. 743; Quinn and Parker 1987,
pp. 684-685; Agee 2000, pp. 39-47; Aubry et al. 2000, pp. 373-382;
Hodges 2000a, pp. 183-191; Hodges 2000b, pp. 136-140; McKelvey et al.
2000a, pp. 211-232). The predominant vegetation of boreal forest is
conifer trees, primarily species of spruce (Picea spp.) and fir (Abies
spp; Elliot-Fisk 1988, pp. 34-35, 37-42). Snowshoe hares feed on
conifers, deciduous trees, and shrubs (Hodges 2000a, pp. 181-183) and
are most abundant in forests with dense understories that provide
forage, cover to escape from predators, and protection during extreme
weather (Wolfe et al. 1982, pp. 665-669; Litvaitis et al. 1985, pp.
869-872; Hodges 2000a, pp. 183-195; Hodges 2000b, pp. 136-140). Lynx
population dynamics, survival, and reproduction are closely tied to
snowshoe hare availability, making snowshoe hare habitat the primary
component of lynx habitat.
Lynx distribution and population persistence are also influenced by
snow conditions (Peers et al. 2012, pp. 4-9). The species is generally
restricted to areas that receive deep and persistent unconsolidated
(``fluffy'') snow, which is thought to allow lynx, with their
proportionately longer limbs and very large feet, to outcompete other
terrestrial hare predators that are less efficient in such conditions
(McCord and Cardoza 1982, pp. 748-749; Quinn and Parker 1987, p. 684;
Buskirk et al. 2000a, pp. 89-94; Buskirk et al. 2000b, pp. 400-401;
Ruggiero et al. 2000b, pp. 445-449; Hoving 2001, p. 75; Hoving et al.
2005, pp. 744-749; Carroll 2007, entire; Gonzalez et al. 2007, entire;
ILBT 2013, pp. 25-26; 79 FR 54782, September 12, 2014). The lynx's
physical adaptations are thought to provide the lynx a seasonal
advantage over potential terrestrial competitors and predators, which
generally have higher foot-loading, causing them to sink into the snow
more than the lynx (McCord and Cardoza 1982, p. 748; Murray and Boutin
1991, entire; Buskirk et al. 2000a, pp. 86-95; Ruediger et al. 2000,
pp. 1-11; Ruggiero et al. 2000b, pp. 445, 450).
Buskirk et al. (2000a, entire) described potential exploitation
(for food) and interference (avoidance) competition between lynx and
other terrestrial and avian predators of hares, several of which have
also been documented to prey on lynx. Coyotes (Canis latrans) were
thought most likely to exert local or regionally important exploitation
competition impacts to lynx (Buskirk et al. 2000a, p. 89). However,
subsequent research showed little evidence of meaningful competition
for hares between lynx and coyotes in winter (Kolbe et al. 2007, p.
1416; Dowd and Gese 2012, entire; Guillaumet et al. 2015, pp. 141-144),
and evidence of competition with, and displacement of lynx by, bobcats
(Lynx rufus) (Robinson 2006, pp. 120-129; Peers et al. 2012, pp. 4-9;
Peers et al. 2013, entire; Sir[eacute]n et al. 2021, p. 1768;
Sir[eacute]n et al. 2022, pp. 761-762). Coyotes, bobcats, and cougars
(Puma concolor; also mountain lion) are capable of imparting
interference competition (i.e., aggressive encounters) effects on lynx
(Buskirk et al. 2000a, p. 89; Scully et al. 2018, pp. 765-766; King et
al. 2020, p. 338). Interference would most likely be during summer but
could also occur during winter in areas lacking deep, unconsolidated
snow (ILBT 2013, p. 36).
Individual lynx require large landscapes with hare densities that
maximize their chances of (1) surviving from birth to independence, (2)
establishing and maintaining a home range, (3) breeding successfully,
and (4) contributing genes to future generations (Breitenmoser et al.
1993, p. 552). These landscapes also must provide conditions that allow
lynx to compete sufficiently for hares and minimize the likelihood of
predation and other sources of lynx mortality.
Lynx populations need large (thousands of square kilometers) boreal
forest landscapes with hare densities capable of supporting (1)
multiple lynx home ranges, (2) reproduction and recruitment most years,
and (3) at least some survival even during years when hare numbers are
low. Lynx populations estimated at fewer than 25 individuals or
occupying habitat areas too small (<483 mi\2\ (1,250 km\2\)) to support
at least 25 individual lynx are considered ``not resilient/functionally
extirpated'' because populations that small are unlikely to persist
over time (Service 2023a, p. 50-51). Large boreal forest landscapes
also must have snow conditions (consistency, depth, and duration) that
allow lynx to outcompete other terrestrial hare predators. To persist,
lynx populations must exhibit recruitment and immigration rates that
equal or exceed mortality and emigration rates on average over the long
term. Immigration may be particularly important to the persistence and
stability of lynx populations at the southern periphery of the range,
including those within the DPS, where hare densities are generally low
and hare populations are either non-cyclic or weakly-cyclic compared to
northern populations. Low hare densities reduce the likelihood that
lynx recruitment will consistently equal or exceed mortality. Non-
cyclic or weakly-cyclic hare populations are unlikely to allow the
rapid lynx population recovery observed in northern lynx populations
outside of the DPS when hare numbers increase dramatically after cyclic
population crashes. Conversely, more stable hare populations, even at
lower landscape-level densities, likely provide stability (i.e.,
prevent periodic steep declines) among lynx populations on the
periphery of the range in the DPS and in southern Canada. Although
immigration rates for DPS populations are unknown, as is the rate and
periodicity of immigration needed to provide demographic stability
among them, connectivity with and immigration from lynx populations in
Canada are believed to be important to the persistence of lynx
populations in the DPS (McKelvey et al. 2000a, pp. 232-242; McKelvey et
al. 2000b, pp. 32-34; Schwartz et al. 2002, entire; Service 2005, p. 2;
ILBT 2013, pp. 34, 42, 47, 54, 60, 65; Squires et al. 2013, p. 187; 79
FR 54782, September 12, 2014).
[[Page 94662]]
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Canada lynx from studies of the species' habitat,
ecology, and life history as described below. Additional information
can be found in the 2014 final critical habitat rule (79 FR 54782,
September 12, 2014), the 2017 SSA report (Service 2017a, entire), and
the SSA report addendum (Service 2023a, entire); available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R6-ES-2024-0142.
We have determined that the following physical or biological
features are essential to the conservation of the Canada lynx DPS:
(1) Snowshoe hare densities adequate to support lynx residency and
reproduction over time, distributed across large landscapes.
(2) A mosaic of boreal/subalpine forest at variable forest
structural stages, the majority of which provide year-round dense
horizontal cover at ground or snow level.
(3) Winter conditions that provide and maintain deep fluffy snow
for extended periods of time.
(4) Suitable habitat large enough (483 mi\2\ (>=1,250 km\2\)) to
support breeding populations.
(5) Permeable landscapes conducive to within-unit lynx daily
movements and dispersal.
We note here that the 2014 critical habitat rule included a
discussion of primary constituent elements (PCEs) essential to the
conservation of the species (79 FR 54782 at 54811, September 12, 2014).
The Service no longer uses PCEs to define critical habitat; rather, we
now evaluate and describe the physical or biological features that are
essential to the conservation of the species in accordance with the
definitions in the Act and our implementing regulations at 50 CFR
424.12(b). We have identified the physical or biological features in
this revised proposed critical habitat rule for the Canada lynx DPS in
the Western United States. The analysis provided in the 2014 critical
habitat rule in support of critical habitat Units 1 (Maine) and 2
(Minnesota), including the description of PCEs, still applies to those
units that are not subject to this revision. Even though the eastern
critical habitat units are based on PCEs, those PCEs are biologically
very similar to the physical and biological features used in this
proposed rule.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: climate change; vegetation management; wildland
fire management; and habitat loss/fragmentation through development,
roads, and mining (ILBT 2013, pp. 68-78; Service 2017a, pp. 51-105). A
detailed discussion of activities influencing the Canada lynx DPS and
its habitat can be found in the SSA report (Service 2017a, pp. 51-105)
and SSA report addendum (Service 2023a, pp. 31-46).
Since the DPS was listed in 2000, nearly all Federal forest plans
and resource management plans throughout the DPS range have been
revised in coordination with the Service and the lynx research
community to include science-based measures and management practices
consistent with lynx conservation, thereby greatly reducing the
potential for population-scale habitat deterioration on Federal lands.
These efforts have contributed significantly to addressing the threat
for which the DPS was listed--the inadequacy, at that time, of
regulatory mechanisms in U.S. Forest Service (USFS) and Bureau of Land
Management (BLM) land and resource management plans. Additionally,
Federal partners continue to incorporate the best available science
into lynx habitat management practices on Federal lands. However, in
the future, climate change-related impacts have the potential to reduce
lynx and snowshoe hare habitat within the DPS. Special management
considerations or protection that may be required within critical
habitat areas to address these threats include (but are not limited to)
the following: maintaining high-quality lynx habitat and potential
climate refugia; maintaining boreal forest vegetation communities that
support high densities of snowshoe hares and resident lynx breeding
populations; supporting connectivity between DPS populations;
implementation of forest management practices that prevent or reduce
risk of catastrophic wildfire; reducing indirect impacts to habitat
from activities adjacent to critical habitat units; and minimizing
habitat disturbance, fragmentation, and destruction through use of best
management practices for vegetation management activities.
Conservation Strategy and Selection Criteria Used To Identify Critical
Habitat
Conservation Strategy
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. The occupied areas identified
encompass the varying habitat types and distribution of the species and
provide sufficient habitat to allow for maintaining the populations. We
are not currently proposing to designate any areas outside the
geographical area occupied by the species at the time of listing
because we have not identified any unoccupied areas that meet the
definition of critical habitat. Designating areas outside the
geographical area occupied by the species at the time of listing would
not improve the likelihood of recovery (the point at which the
protections of the Act are no longer necessary and delisting the DPS
would be appropriate). We do not find that the DPS can only be
conserved and recovered if we were to designate areas not occupied at
the time of listing. Because these areas are not essential for the
conservation and recovery of the DPS, designating them would not comply
with the Act.
We developed a conservation strategy for the Canada lynx DPS to
determine and select appropriate areas occupied at the time of listing
that contain the physical or biological features essential to the
conservation of the species. The goal of our conservation strategy for
lynx is to recover the DPS to the point where the protections of the
Act are no longer necessary. The role of critical habitat in achieving
this conservation goal is to identify the specific areas within the
range of the Canada lynx DPS that provide the essential physical and
biological features without which the species' range-wide resiliency,
redundancy, and representation would be insufficient to achieve
recovery. This, in turn, requires an understanding of the fundamental
parameters of Canada lynx
[[Page 94663]]
biology and ecology based on well-accepted conservation-biology and
ecological principles for conserving species and their habitats, such
as those described in the 2017 SSA report (Service 2017a, entire), the
2023 SSA report addendum (Service 2023a, entire), and the 2023 draft
recovery plan for the Canada lynx (Service 2023b, entire).
The conservation strategy is the outline for the long-term
viability of the Canada lynx DPS. In developing our conservation
strategy, we focused on maintaining sufficient representation and
redundancy within the DPS by maintaining or improving the resiliency of
lynx populations and conserving their habitats. The conservation
strategy includes the following:
(1) Maintenance or improvement of the current resiliency of the
five breeding lynx populations (Maine, Minnesota, North Cascades,
Northern Rocky Mountains, Southern Rocky Mountains) to preserve the
redundancy and representation of the DPS.
(2) Identification and conservation of high-quality lynx habitat
and potential climate refugia within the previously mentioned five
areas and the Greater Yellowstone Area (GYA).
(3) Continued implementation and refinement of regulatory
mechanisms and other conservation measures that incorporate the best
available science to ensure the conservation of lynx habitats and
populations.
(4) Populations distributed across the three large representative
units in the DPS range (Northeast, Midwest, and West), and habitat
that:
(a) Supports high or moderate-resiliency, resident lynx breeding
populations.
(b) Supports connectivity between DPS populations and the core of
the species' range in Canada.
(c) Provides the climatic conditions that support resident
populations.
(d) Provides the boreal forest vegetation communities that support
high densities of snowshoe hares and resident lynx breeding
populations.
(e) Is potentially capable of providing climate refugia.
Criteria Used To Identify Critical Habitat
In previous critical habitat designations, we identified lynx
habitat using expert judgement of vegetation and habitat types and
elevation thresholds. For the Western United States, we now have new,
state-of-the-art models of lynx habitat (Olson et al. 2021, entire;
Squires et al., in review) based on the best empirical data of lynx
locations across the Western United States. The models accurately map
environmental covariates (abiotic and biotic features) found at lynx
locations, as compared to a random sample of background locations,
within and outside of known home ranges. These models were built using
data from thousands of verified fine-scale global positioning system
(GPS) locations of radio-marked resident lynx in Montana, Washington,
Wyoming, and Colorado. Additionally the models were tested and verified
using location data withheld from building the models and incidental
lynx occurrence data that included locations within home ranges and
locations outside of home ranges. The models cover the western extent
of the Canada lynx DPS range and indicate the relative likelihood of
lynx presence in Washington, Idaho, western Montana, northwestern and
south-central Wyoming, northeastern Utah, western Colorado, and
northern New Mexico.
These models and the use of them to identify high-quality lynx
habitat were documented in the 2022 interagency Western Lynx Biology
Team (WLBT) report (WLBT 2022, entire). The WLBT included species
experts from the Service, USFS, and BLM, as well as scientists from the
U.S. Department of Agriculture Rocky Mountain Research Station who led
the development of the new habitat models. The WLBT framework also
underwent formal peer review. The interagency team used a science-based
approach to identify key habitat areas from the models and developed a
tiered approach to model outputs by evaluating the extent and
proportion of modeled high-quality habitat.
The WLBT used the models to identify areas of high conservation
value for lynx where high-quality habitat is abundant, and further
assigned those areas into three tiers. Tier 1 polygons provide large
and well-connected areas with high proportions of high-quality habitat,
and support long-term lynx occupancy and reproduction. Tier 2 polygons
contain lower proportions of high-quality habitat, and they provide
habitat for expansion or redundant habitat areas. In tier 2, the
objective is to provide habitat to support periodic to regular
occupancy, which may include reproductively successful individuals at
times. Tier 3 areas are generally smaller islands of habitat that may
function as ``stepping stones'' for dispersing lynx; these areas may be
important to maintain connectivity and facilitate dispersal across the
landscape and among tiers.
The WLBT mapping effort and underlying species distribution models
identify habitat with the climatic and vegetation characteristics
necessary to support lynx residency and reproduction. This includes
boreal and subalpine forested habitats with a mosaic of variable forest
successional and structural stages, dense horizontal cover, persistent
snow, and moderate to high snowshoe hare densities. To inform our
delineation of revised critical habitat in the Western United States,
the Service used the tier 1 habitat described by the WLBT. When
designating critical habitat, we are not required to designate all
areas where a species occurs. We chose to focus on tier 1 polygons
because these are the areas that have at least 50 percent of the
polygon in the highest quality habitat. Tier 1 habitat is the most
valuable to long-term lynx occupancy and reproduction and sufficient to
provide for the conservation of the Canada lynx DPS. We did not use
tier 2 or 3 polygons, as those areas have lower proportions of high-
quality lynx habitat, such that they are not likely to support long-
term occupancy and reproduction. We identified tier 1 polygons that
exceeded or were in close proximity to other polygons that exceeded
1,250 contiguous km\2\ (483 mi\2\) of high-quality habitat as the areas
on the landscape that contain the physical and biological features
essential to the conservation of the Canada lynx DPS.
In summary, for areas within the geographical area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria and methodology. We mapped all
WLBT tier 1 polygons in the Cascades, Northern Rocky Mountains, and
Southern Rocky Mountains. These polygons were then reviewed by Service
biologists, using the best available information, to ensure that all
polygons have the physical and biological features essential to Canada
lynx. These features include (1) snowshoe hare densities adequate to
support lynx residency and reproduction over time, distributed across
large landscapes; (2) a mosaic of boreal/subalpine forest at variable
forest structural stages, the majority of which provide year-round
dense horizontal cover at ground or snow level; (3) winter conditions
that provide and maintain deep fluffy snow for extended periods of
time; (4) suitable habitat large enough (483 mi\2\ (>=1,250 km\2\)) to
support breeding populations; (5) permeable landscapes conducive to
within-unit lynx daily movements and dispersal.
We then removed any isolated polygons not occupied at the time of
listing and smaller than 483 mi\2\ (>=1,250 km\2\), which is the
minimum area
[[Page 94664]]
thought necessary to support a resilient lynx population as identified
in the SSA report addendum (Service 2023a, pp. 50-51).
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for lynx. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this proposed rule have been excluded
by text in the proposed rule and are not proposed for designation as
critical habitat. Therefore, if the critical habitat is finalized as
proposed, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document.
Proposed Critical Habitat Designation
Critical habitat was last designated for the Canada lynx DPS in
2014 and included five units in the contiguous United States (79 FR
54782, September 12, 2014). We are proposing to revise critical habitat
for the Canada lynx in the Western United States. Existing critical
habitat units 1 (Maine) and 2 (Minnesota) are not included in this
proposed revision to lynx critical habitat and remain in place as
described in the 2014 critical habitat final rule. The critical habitat
areas we describe below constitute our current best assessment of areas
that meet the definition of critical habitat for lynx in the Western
United States. The four areas we propose as critical habitat are: (1)
Unit 3: Northern Rockies; (2) Unit 4: North Cascades; (3) Unit 5:
Greater Yellowstone Area (GYA); and (4) Unit 6: Southern Rockies. Table
1, below, shows the proposed critical habitat units and the approximate
area of each unit. All units were occupied at the time of listing in
2000. Table 1 lists the proposed critical habitat units and their
approximate sizes broken down by major land ownership.
Table 1--Proposed Western Critical Habitat Units for Canada Lynx (MI\2\ (KM\2\))
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat unit Federal State Private Tribal Other Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Northern Rockies........................................... 7,193 (18,630) 310 (803) 214 (554) 230 (596) 12 (30) 7,959 (20,613)
4. North Cascades............................................. 2,178 (5,641) 170 (441) 6 (15) NA NA 2,354 (6,097)
5. Greater Yellowstone Area................................... 1,117 (2,892) 1 (3) 3 (7) NA NA 1,121 (2,902)
6. Southern Rockies........................................... 6,854 (17,752) 50 (129) 684 (1,771) 37 (97) 54 (140) 7,679 (19,889)
Total..................................................... 17,342 (44,915) 531 (1,376) 906 (2,346) 267 (692) 66 (170) 19,112 (49,500)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Numbers are calculated using the U.S. Geological Survey's (USGS) Protected Areas Database for the United
States 3.0 dataset supplemented with the BLM 2023 Surface Management Agency dataset.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Canada lynx DPS below.
Unit 3: Northern Rockies
Unit 3 consists of 7,959 mi\2\ (20,613 km\2\) located in
northwestern Montana in portions of Flathead, Glacier, Granite, Lake,
Lewis and Clark, Lincoln, Mineral, Missoula, Pondera, Powell, Ravalli,
and Teton Counties and northern and east-central Idaho in portions of
Bonner, Boundary, Clearwater, and Idaho Counties. The current proposal
represents a 1,808-mi\2\ (4,683-km\2\) reduction in the 2014
designation for this unit, although it includes new areas of proposed
critical habitat in northern Idaho and along the central Idaho-Montana
border. This unit was occupied by lynx at the time of listing and is
currently occupied by the species. Lynx are known to be widely
distributed throughout this unit and breeding has been documented in
multiple locations. This unit supports a resident population thought by
lynx researchers to number between 200 and 300 lynx (Lynx SSA Team
2016, p. 41). This unit is directly connected to lynx habitats and
populations in southwestern Alberta and southeastern British Columbia,
Canada. Lynx in this unit represent the southern extent of a larger
cross-border population, most of which occurs in Western Canada.
Land ownership within the unit is 90 percent Federal, 4 percent
State, 3 percent Tribal, and 3 percent private. Federal lands in this
unit include National Forest System lands within the Kootenai,
Flathead, Lolo, and Helena-Lewis and Clark National Forests in Montana
and the Idaho Panhandle National Forest and the Clearwater portion of
the Nez Perce-Clearwater National Forest in Idaho; National Park
Service lands in Glacier National Park; and BLM lands in the Garnet
Resource Area. State lands in this unit include areas managed by the
Montana Department of Natural Resources and Conservation; Montana Fish,
Wildlife, and Parks; and the Idaho Department of Lands. Tribal lands
within this unit include parts of the Confederated Salish and Kootenai
Tribes Flathead Reservation and the Blackfeet Reservation, both in
Montana. State and Tribal lands in this unit are included in the
proposed critical habitat designation but will be considered for
exclusion in accordance with section 4(b)(2) of the Act and some or all
may be excluded from the final designation.
The physical or biological features essential to the conservation
of the Canada lynx in this unit may require special management
considerations or protection to address activities that may result in
removal or reduction of boreal/subalpine forest conditions that support
Canada lynx and snowshoe hares. Such activities may include, but are
not limited to road construction and maintenance, and commercial,
recreational, and energy/mineral development, when they remove or
reduce boreal forest in a manner that impacts snowshoe hare densities,
the size of suitable habitat patches to support breeding lynx
populations, and permeability of landscapes for lynx daily movements
and dispersal in this unit. Climate change is expected to negatively
impact the duration of deep fluffy snow conditions favorable to lynx in
this unit over time.
[[Page 94665]]
Unit 4: North Cascades
Unit 4 consists of 2,354 mi\2\ (6,097 km\2\) located in north-
central Washington in portions of northern Chelan, Okanogan, and
eastern Skagit and Whatcom Counties. The current proposal represents a
520-mi\2\ (1,346-km\2\) increase from the 2014 designation for this
unit. This unit was occupied by lynx at the time of listing and is
currently occupied by the species. Lynx are known to be distributed
throughout much of this unit and breeding has been documented. The
Service estimates that this unit is potentially capable of supporting a
resident population of 90-120 lynx, but extensive large wildfires in
roughly half of lynx habitat over the past 15-20 years are thought to
have reduced its carrying capacity commensurately (but perhaps
temporarily). Nonetheless, a systematic lynx DNA collection effort
between 2018 to 2023 documented 73 individual lynx in north central
Washington (Akins and Ransom 2024, pers. comm.). This unit is directly
connected to lynx habitats and populations in southern British
Columbia, Canada, and lynx in this unit represent the southern extent
of a larger cross-border population, most of which occurs in Western
Canada.
Land ownership within the unit is 93 percent Federal and 7 percent
State, with small parcels of private lands that represent less than
one-half of 1 percent of the unit. Federal lands include 1,732 mi\2\
(4,485 km\2\) within the Okanogan-Wenatchee National Forest and 117
mi\2\ (303 km\2\) of North Cascades National Park. It also includes 39
mi\2\ (100 km\2\) of State Forest lands within the Loomis Natural
Resources Conservation Area, which is managed by the Washington
Department of Natural Resources. We excluded these State Forest lands
from previous critical habitat designations and will again consider
them for exclusion under section 4(b)(2) of the Act.
The physical or biological features essential to the conservation
of the Canada lynx in this unit may require special management
considerations or protection to address activities that may result in
removal or reduction of boreal/subalpine forest conditions that support
Canada lynx and snowshoe hares. Such activities may include, but are
not limited to extensive, high-intensity wildfires, road construction
and maintenance, and commercial, recreational, and energy/mineral
development, when they remove or reduce boreal forest in a manner that
impacts snowshoe hare densities, the size of suitable habitat patches
to support breeding lynx populations, and permeability of landscapes
for lynx daily movements and dispersal in this unit. Climate change is
expected to negatively impact the duration of deep fluffy snow
conditions favorable to lynx in this unit over time.
Unit 5: Greater Yellowstone Area
Unit 5 consists of 1,121 mi\2\ (2,902 km\2\) located in west-
central and northwestern Wyoming in portions of Fremont, Lincoln,
Sublette, and Teton Counties. The current proposal represents an 8,025-
mi\2\ (20,785-km\2\) reduction from the 2014 designation for this unit.
Previous research documented very low snowshoe hare densities
throughout much of the Greater Yellowstone Area (GYA) (Hodges et al.
2009, entire), but with small pockets of habitat on the Bridger-Teton
National Forest in the southern part of the GYA supporting high hare
densities (Berg et al. 2012, p. 1483). Recent habitat modeling that is
foundational to this critical habitat revision (Olson et al. 2021,
entire) demonstrated that most of the GYA, including areas previously
designated as lynx critical habitat, does not contain the physical and
biological features necessary to support persistent lynx residency.
This unit was occupied at the time of listing and occasional lynx
occurrence has been documented since then. It is uncertain whether this
unit historically supported a small resident population or if lynx
presence and reproduction were and are naturally ephemeral and
intermittent. The area currently does not appear to support a resident
breeding population.
Based on home range sizes and lynx densities estimated elsewhere in
the western part of the DPS range (Montana, Washington, Colorado), the
Service estimates that this unit could potentially support a population
of 25-50 lynx if sufficient habitat conditions and hare densities could
be achieved and maintained, and a resident lynx population is
established via translocation. This unit is not directly connected to
lynx habitats and populations elsewhere in the DPS range or in the core
of the species' range in Western Canada. However, historical records
suggest that dispersing lynx associated with cyclic irruptions of lynx
from Canada into the northern contiguous United States occasionally
reached the GYA (McKelvey et al. 2000a, pp. 229-230). Additionally, at
least nine radio-marked lynx released in Colorado subsequently moved
into or through the GYA unit in the period 1999-2010, with several
establishing temporary residency in the area proposed for critical
habitat designation (Ivan 2017, entire).
Land ownership within the unit is more than 99 percent Federal and
includes small (less than 4 mi\2\ (10 km\2\) parcels of private and
State lands; there are no Tribal lands. Most of this unit occurs within
the Bridger-Teton National Forest, with a smaller area in the Shoshone
National Forest and several small parcels of BLM lands managed by the
Kemmerer and Pinedale Field Offices.
The physical or biological features essential to the conservation
of the Canada lynx in this unit may require special management
considerations or protection to address activities that may result in
removal or reduction of boreal/subalpine forest conditions that support
Canada lynx and snowshoe hares. Such activities may include, but are
not limited to road construction and maintenance, and commercial,
recreational, and energy/mineral development, when they remove or
reduce boreal forest in a manner that impacts snowshoe hare densities,
the size of suitable habitat patches to support breeding lynx
populations, and permeability of landscapes for lynx daily movements
and dispersal in this unit. Climate change is expected to negatively
impact the duration of deep fluffy snow conditions favorable to lynx in
this unit over time.
Unit 6: Southern Rockies
Unit 6 consists of 7,679 mi\2\ (19,889 km\2\) located in west-
central and southwestern Colorado in portions of Archuleta, Boulder,
Chaffee, Clear Creek, Conejos, Dolores, Eagle, Gilpin, Grand, Gunnison,
Hinsdale, La Plata, Lake, Mineral, Montezuma, Montrose, Ouray, Park,
Pitkin, Rio Grande, Saguache, San Juan, San Miguel, and Summit
Counties, and northern New Mexico in portions of Rio Arriba County.
Critical habitat was not previously designated in the Southern Rockies.
At the time of listing, this unit was occupied by lynx translocated
from Canada and Alaska and it is currently occupied by the descendants
of those released lynx. It is uncertain whether this unit historically
supported a resident population or if lynx presence was naturally
ephemeral and intermittent.
The area currently supports a resident breeding population that is
the result of the State of Colorado's Canada Lynx Reintroduction
Program, which included the 1999-2006 translocations of 218 lynx from
Canada and Alaska into the San Juan Mountains in southwestern Colorado,
with continued lynx occurrence and reproduction documented annually
since then. Lynx researchers with Colorado Parks and
[[Page 94666]]
Wildlife estimate the current size of the population at 75-150 resident
lynx. This unit is not directly connected to lynx habitats and
populations elsewhere in the DPS range or in the core of the species'
range in western Canada. However, historical records suggest that
dispersing lynx associated with cyclic irruptions of lynx from Canada
into the northern contiguous United States occasionally reached the
Southern Rockies. Some of the lynx released into Colorado dispersed
into surrounding States, with some traveling north into the GYA,
Montana and Idaho.
Land ownership within the unit is almost 89 percent Federal, almost
9 percent private, 1 percent State, and less than 1 percent Tribal and
local government. Most (96 percent of) Federal lands occur on national
forests, including the Arapaho, Gunnison, Pike, Rio Grande, Roosevelt,
San Isabel, San Juan, Uncompahgre, and White River National Forests in
Colorado, and the Carson National Forest in New Mexico. The remaining 4
percent of Federal lands occur on BLM lands, mostly those managed by
the Gunnison Field Office with smaller parcels managed by the
Kremmling, Royal Gorge, and Uncompahgre field offices, and smaller
parcels of U.S. Fish and Wildlife Service and Bureau of Reclamation
lands. Less than 1 percent of this unit includes Off-Reservation Tribal
Trust lands of the Jicarilla Apache Nation in northern New Mexico.
Tribal lands will be considered for exclusion in accordance with
section 4(b)(2) of the Act and some or all may be excluded from the
final designation. It also includes small parcels of State and local
government lands which, combined, represent less than one-half of 1
percent of the proposed critical habitat designation.
The physical or biological features essential to the conservation
of the Canada lynx in this unit may require special management
considerations or protection to address activities that may result in
removal or reduction of boreal/subalpine forest conditions that support
Canada lynx and snowshoe hares. Such activities may include, but are
not limited to road construction and maintenance, and commercial,
recreational, and energy/mineral development, when they remove or
reduce boreal forest in a manner that impacts snowshoe hare densities,
the size of suitable habitat patches to support breeding lynx
populations, and permeability of landscapes for lynx daily movements
and dispersal in this unit. Climate change is expected to negatively
impact the duration of deep fluffy snow conditions favorable to lynx in
this unit over time.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species (50 CFR 402.02).
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during formal consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation. Reinitiation of consultation is
required and shall be requested by the Federal agency, where
discretionary Federal involvement or control over the action has been
retained or is authorized by law and: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (4) if a new species is listed or critical habitat
designated that may be affected by the identified action. As provided
in 50 CFR 402.16, the requirement to reinitiate consultations for new
species listings or critical habitat designation does not apply to
certain agency actions (e.g., land management plans issued by the BLM
in certain circumstances).
Destruction or Adverse Modification of Critical Habitat
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires that our Federal Register
documents ``shall, to the maximum extent practicable also include a
brief description and evaluation of those activities (whether public or
private) which, in the opinion of the Secretary, if undertaken may
adversely modify [critical] habitat, or may be affected by such
designation.'' Activities that may be affected by designation of
critical habitat for the Canada lynx include those that may affect the
physical or biological features of the Canada lynx' critical habitat
(see Physical or Biological Features Essential to the Conservation of
the Species).
[[Page 94667]]
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude any area from critical habitat if the benefits of
exclusion outweigh those of inclusion, so long as exclusion will not
result in extinction of the species concerned. Exclusion decisions are
governed by the regulations at 50 CFR 424.19 and the Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act
(hereafter, the ``2016 Policy''; 81 FR 7226, February 11, 2016), both
of which were developed jointly with the National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Order (E.O.) 12866 and E.O. 13563 direct Federal agencies
to assess the costs and benefits of available regulatory alternatives
in quantitative (to the extent feasible) 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. If sufficient data are available, we assess to the extent
practicable the probable impacts to both directly and indirectly
affected entities. To determine whether the designation of critical
habitat may have an economic effect of $200 million or more in any
given year (which would trigger section 3(f)(1) of E.O. 12866, as
amended by E.O. 14094), we used a screening analysis to assess whether
a revised designation of critical habitat for the Canada lynx DPS is
likely to exceed this threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Canada lynx DPS (Industrial Economics, Inc.
(IEc) 2024, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out
particular geographical areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
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 presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. Therefore, designating occupied areas as critical habitat
[[Page 94668]]
typically causes little if any incremental impacts above and beyond the
impacts of listing the species. As a result, we generally focus the
screening analysis on areas of unoccupied critical habitat (unoccupied
units or unoccupied areas within occupied units).
Overall, the screening analysis assesses whether designation of
critical habitat is likely to result in any additional management or
conservation efforts that may incur incremental economic impacts. This
screening analysis combined with the information contained in our IEM
constitute what we consider to be our economic analysis of the proposed
critical habitat designation for the Canada lynx DPS and is summarized
in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the proposed critical habitat designations. In our
evaluation of the probable incremental economic impacts that may result
from the proposed designation of critical habitat for the Canada lynx,
first we identified, in the IEM dated May 31, 2024, probable
incremental economic impacts associated with the following categories
of activities: (1) timber harvest; (2) silviculture; (3) wildfire
response and management; (4) fuels reduction; (5) recreation
management; (6) domestic livestock grazing; (7) infrastructure/
facilities maintenance/development; and (8) residential development/
construction. We considered each industry or category individually.
Additionally, we considered whether their activities have any Federal
involvement. Critical habitat designation generally will not affect
activities that do not have any Federal involvement; under the Act,
designation of critical habitat affects only activities conducted,
funded, permitted, or authorized by Federal agencies. Because the
species is listed, in areas where the Canada lynx is present, Federal
agencies are required to consult with the Service under section 7 of
the Act on activities they authorize, fund, or carry out that may
affect the species. If when we finalize this proposed critical habitat
designation, Federal agencies would be required to consider the effects
of their actions on the designated habitat, and if the Federal action
may affect critical habitat, our consultations would include an
evaluation of measures to avoid the destruction or adverse modification
of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Canada
lynx's critical habitat. Because this species has been listed since
2000 and critical habitat has been designated since 2006, we have a
long consultation history to inform this distinction. The following
specific circumstances in this case help to inform our evaluation: (1)
The essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the species itself. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the revision
and designation of critical habitat for this species. This evaluation
of the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed revised critical habitat designation for the Canada
lynx DPS in the Western United States includes approximately 19,112
mi\2\ (49,500 km\2\) in four occupied critical habitat units in
Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming. This
proposed revision results in an approximately 1,650-mi\2\ (4,274-km\2\)
reduction from the 2014 critical habitat designation in the Western
United States. Land ownership is approximately 91 percent Federal, 5
percent private, 3 percent State, 1 percent Tribal, and less than 1
percent other. This rule makes no updates to existing critical habitat
in Maine and Minnesota; therefore, the economic analysis does not
consider the effects of critical habitat in those States.
The incremental effects of revising critical habitat for the Canada
lynx are likely to be limited to changes in administrative effort to
evaluate the potential for adverse modification of Canda lynx critical
habitat. The entities most likely to incur incremental costs are
parties to section 7 consultations, including Federal action agencies
and, in some cases, third parties, most frequently State agencies or
municipalities. This analysis finds that administrative costs and cost
savings are on the order of $66,000 and $47,000 respectively, in a
given year (2024 dollars). The expected net effect of revising critical
habitat for the Canada lynx is a $19,000 increase in administrative
costs per year. Thus, this analysis finds that despite a net reduction
in the size of critical habitat for the species, the costs of critical
habitat are expected to increase given the geographic representation of
consultations across the new and removed areas. Incremental economic
benefits and forgone benefits are not anticipated. Therefore, the rule
is unlikely to meet the threshold for a significant rule as defined in
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.
This finding is based on several factors, including:
<bullet> No change in costs of complying with critical habitat in
existing critical habitat that is included in the proposed revised
critical habitat.
<bullet> The proposed units are considered occupied by the Canada
lynx, and occupied units are afforded significant baseline protection
under the Act due to the presence of the listed species.
<bullet> All projects with a Federal nexus would be subject to
section 7 consultation regardless of the designation of critical
habitat due to the presence of the listed species.
<bullet> Critical habitat is not likely to change the Service's
recommendation for project modifications as part of future
consultations considering the Canada lynx.
<bullet> The Canada lynx receives additional baseline protection
from co-occurring listed species, which include species with
overlapping critical habitat and similar resource and habitat needs.
Our analysis finds that the proposed revised critical habitat for
the Canada lynx is unlikely to result in economic impacts that exceed
$200 million in any single year; therefore, they would not be
significant. The incremental effects resulting from the proposed
critical habitat for the Canada lynx are subject to uncertainty due to
limited information on what future projects may require section 7
consultation that considers Canada lynx habitat. However, the focus of
the screening analysis is on the likelihood that this proposed rule is
economically significant. It is unlikely that additional data gathering
and analysis to address uncertainty would change the findings of this
analysis.
We are soliciting data and comments from the public on the economic
analysis discussed above. During the development of a final
designation, we will consider the information presented in the economic
analysis and any additional information on economic impacts we receive
during the public comment period to determine whether any specific
areas should be excluded from the final critical habitat designation
under authority of section
[[Page 94669]]
4(b)(2), our implementing regulations at 50 CFR 424.19, and the 2016
Policy. We may exclude an area from critical habitat if we determine
that the benefits of excluding the area outweigh the benefits of
including the area, provided the exclusion will not result in the
extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, we must still consider impacts on national security, including
homeland security, on those lands or areas not covered by section
4(a)(3)(B)(i) because section 4(b)(2) requires us to consider those
impacts whenever it designates critical habitat. Accordingly, if DoD,
Department of Homeland Security (DHS), or another Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns, or we have otherwise identified national-
security or homeland-security impacts from designating particular areas
as critical habitat, we generally have reason to consider excluding
those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the Canada lynx
DPS are not owned or managed by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are approved and permitted conservation
agreements or plans covering the species in the area--such as safe
harbor agreements (SHAs), candidate conservation agreements with
assurances (CCAAs) or ``conservation benefit agreement'' or
``conservation agreement'' (CBAs) (CBAs are a new type of agreement
replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April
12, 2024)) or HCPs, or whether there are non-permitted conservation
agreements and partnerships that may be impaired by designation of, or
exclusion from, critical habitat. In addition, we look at whether
Tribal conservation plans or partnerships, Tribal resources, or
government-to-government relationships of the United States with Tribal
entities may be affected by the designation. We also consider any
State, local, social, or other impacts that might occur because of the
designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of the Canada lynx, the benefits of critical habitat
include public awareness of the presence of Canada lynx and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for Canada lynx due to protection from
destruction or adverse modification of critical habitat. Continued
implementation of an ongoing management plan that provides conservation
equal to or more than the protections that result from a critical
habitat designation would reduce those benefits of including that
specific area in the critical habitat designation.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Private or Other Non-Federal Conservation Plans or Agreements
Associated With Permits Under Section 10 of the Act
As mentioned above, as part of our section 4(b)(2) analysis, we
consider whether there are approved and permitted conservation
agreements or plans covering the species in the area such as SHAs,
CCAAs, CBAs or HCPs. Under sections 10(a)(1)(A) and 10(a)(1)(B) of the
Act, non-Federal entities may develop these agreements or plans when
they seek authorization for take that may otherwise be prohibited under
section 9 through an enhancement of survival (EOS) or incidental take
permit (ITP), respectively.
Property owners seeking an EOS permit collaborate with the Service
to develop a CBA to support the application. The EOS permit authorizes
take associated with implementing the agreement and ongoing land
management activities that provide a net conservation benefit to the
covered
[[Page 94670]]
species. The CBA replaces two previous types of voluntary agreements
(SHAs and CCAAs) going forward for new agreements after May 2024.
However, permitted SHAs and CCAAs or those noticed in the Federal
Register prior to May 2024 remain in effect.
For incidental take permits issued under section 10(a)(1)(B) of the
Act, applicants are required to develop a conservation plan, more
commonly known as an HCP, to support their application. ITPs authorize
take that is incidental to, but not the purpose of, carrying out
otherwise lawful activities provided that the impact of the taking is
minimized and mitigated to the maximum extent practicable.
For both section 10(a)(1)(A) and 10(a)(1)(B) permits, we provide
permittees with assurances. In the case of section 10(a)(1)(A) permits,
we may not require additional or different conservation measures to be
undertaken by a permittee without the consent of the permittee. In the
case of section 10(a)(1)(B), we will not impose further land-, water-,
or resource-use restrictions, or require additional commitments of
land, water, or finances, beyond those agreed to in the HCP.
We place great value on the partnerships that are developed during
the preparation and implementation of conservation plans and
agreements. In some cases, permittees agree to do more for the
conservation of the species and their habitats on private lands than
designation of critical habitat would provide alone.
When we undertake a discretionary section 4(b)(2) exclusion
analysis based on conservation plans or agreements, we anticipate
consistently excluding such areas if incidental take caused by the
activities in those areas is covered by the permit under section 10 of
the Act and the plan meets all of the following three factors:
a. The permittee is properly implementing the CCAA/SHA/HCP and is
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully
implementing the commitments and provisions in the CCAA/SHA/HCP,
implementing agreement, and permit.
b. The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that the Services
extend to such an agreement depends on the degree to which the
conservation measures undertaken in the CCAA/SHA/HCP would also protect
the habitat features of the similar species.
c. The CCAA/SHA/HCP specifically addresses that species' habitat
and meets the conservation needs of the species in the planning area.
See the 2016 Policy for additional details. Because combining types
of agreements such as SHAs and CCAAs into the term ``CBAs'' is a recent
development (89 FR 26070; April 12, 2024), the 2016 Policy did not
expressly reference CBAs. However, because CBAs replace CCAAs and SHAs
moving forward we treat CBAs similarly to how we treat CCAAs/SHAs/HCPs
described above.
The proposed critical habitat designation includes areas that are
covered by the following permitted plan providing for the conservation
of the Canada lynx: Montana Department of Natural Resources and
Conservation (DNRC) Forested State Trust Lands Habitat Conservation
Plan. After considering the factors described above, we have identified
159 mi\2\ (413 km\2\) that we have reason to consider excluding because
of this permitted plan. We describe below our reasons for considering
these areas for potential exclusion.
State of Montana Department of Natural Resources and Conservation
Forested State Trust Lands Habitat Conservation Plan (DNRC HCP)
The Montana DNRC multi-species HCP includes a lynx conservation
strategy that minimizes impacts of forest management activities on
lynx, complements lynx conservation objectives set forth in the States'
comprehensive fish and wildlife conservation strategy (Montana
Department of Fish, Wildlife and Parks 2005, entire), and describes
conservation commitments that are based on recent information from lynx
research in Montana (Montana DNRC and U.S. Fish and Wildlife Service
2010, pp. 2-45-2-61). It also commits to active lynx monitoring and
adaptive management programs (Montana DNRC and U.S. Fish and Wildlife
Service 2010, pp. 4-27-4-37). The Montana DNRC worked closely with the
Service in developing and completing a National Environmental Policy
Act (NEPA) analysis on this multi-species HCP (Montana DNRC and U.S.
Fish and Wildlife Service 2010, entire).
In our biological opinion regarding potential impacts to lynx of
implementation of this HCP, the Service concluded that the HCP promotes
the conservation of lynx and their habitat through increased
conservation commitments by [Montana] DNRC for forest management
practices, maintenance of the habitat mosaic, structure, and components
required to support lynx and their primary prey, the snowshoe hare,
monitoring, and adaptive management (Service 2011, p. III-94). We
determined that the proposed action is not likely to jeopardize the
continued existence of Canada lynx within the contiguous U.S. DPS and
that forest management activities managed under the conservation
commitments of the DNRC HCP would not appreciably reduce the likelihood
of survival and recovery of Canada lynx (Service 2011, p. III-94).
In the previous final revised critical habitat designation,
published in the Federal Register on September 12, 2014 (79 FR 54782),
we determined that the benefits of excluding lands managed in
accordance with the DNRC HCP outweighed the benefits of including them
in the designation, and that doing so would not result in extinction of
the species. We, therefore, again consider excluding 159 mi\2\ (413
km\2\) of forested State Trust lands managed in accordance with the
DNRC HCP from the revised lynx critical habitat designation in Unit 3.
However, in the final rule, we will again weigh the benefits of
inclusion versus exclusion of these lands in the final critical habitat
designation.
Non-Permitted Conservation Plans, Agreements, or Partnerships
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
Shown below is a non-exhaustive list of factors that we consider in
evaluating how non-permitted plans or agreements affect the benefits of
inclusion or exclusion. These are not required elements of plans or
agreements. Rather, they are some of the factors we may consider, and
not all of these factors apply to every plan or agreement.
(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
[[Page 94671]]
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.
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required.
(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 essential physical or biological features for 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.
The proposed critical habitat designation includes areas that are
covered by the following non-permitted plan providing for the
conservation of the Canada lynx: State of Washington Department of
Natural Resources (WDNR) Lynx Habitat Management Plan for DNR-managed
Lands (WDNR LHMP). After considering the factors described above, we
have identified 168 mi\2\ (435 km\2\) that we have reason to consider
excluding because of this plan. We describe below our reasons for
considering these areas for potential exclusion.
State of Washington Department of Natural Resources Lynx Habitat
Management Plan for DNR-Managed Lands (WDNR LHMP)
The WDNR LHMP encompasses 197 mi\2\ (510 km\2\) of WDNR-managed
lands distributed throughout north-central and northeastern Washington
in areas delineated as Lynx Management Zones in the Washington State
Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-
13). Of the area covered by the plan, 168 mi\2\ (435 km\2\) overlaps
the area proposed for designation as critical habitat. The WDNR LHMP
was finalized in 2006 and is a revision of the lynx plan that WDNR
began implementing in 1996. The 1996 plan was developed as a substitute
for a species-specific critical habitat designation required by
Washington Forest Practices rules in response to the lynx being State-
listed as threatened (Washington DNR 2006, p. 5). The 2006 WDNR LHMP
provided further provisions to avoid the incidental take of lynx
(Washington DNR 2006, p. 6). WDNR is committed to following the LHMP
until 2076, or until the lynx is delisted (Washington DNR 2006, p. 6).
WDNR requested that lands subject to the plan be excluded from previous
critical habitat designation in 2014.
The WDNR LHMP contains measures to guide WDNR in creating and
preserving quality lynx habitat through its forest management
activities. The objectives and strategies of the LHMP are developed for
multiple planning scales (ecoprovince and ecodivision, lynx management
zone, lynx analysis unit (LAU), and ecological community), and include:
(1) Encouraging genetic integrity at the species level by
preventing bottlenecks between British Columbia and Washington by
limiting size and shape of temporary non-habitat along the border and
maintaining major routes of dispersal between British Columbia and
Washington;
(2) Maintaining connectivity between subpopulations by maintaining
dispersal routes between and within zones and arranging timber harvest
activities that result in temporary non-habitat patches among
watersheds so that connectivity is maintained within each zone;
(3) Maintaining the integrity of requisite habitat types within
individual home ranges by maintaining connectivity between and
integrity within home ranges used by individuals and/or family groups;
and
(4) Providing a diversity of successional stages within each LAU
and connecting denning sites and foraging sites with forested cover
without isolating them with open areas by prolonging the persistence of
snowshoe hare habitat and retaining coarse woody debris for denning
sites (Washington DNR 2006, p. 29).
The LHMP identifies specific guidelines to achieve the objectives
and strategies at each scale; it also describes how WDNR will monitor
and evaluate the implementation and effectiveness of the LHMP by
providing implementation monitoring reports to the Service and
Washington Department of Fish and Wildlife every 2 years (Washington
DNR 2006, pp. 29-63).
In both of the previous final revised critical habitat designations
for lynx, published in the Federal Register on February 25, 2009 (74 FR
8616) and September 12, 2014 (79 FR 54782), we determined that the
benefits of excluding lands managed in accordance with the WDNR LHMP
outweighed the benefits of including them in the designation, and that
doing so would not result in extinction of the species. We again
consider excluding 168 mi\2\ (435 km\2\) of lands managed in accordance
with the WDNR LHMP from the revised lynx critical habitat designation.
However, in the final rule, we will again weigh the benefits of
inclusion versus exclusion of these lands in the final critical habitat
designation.
Tribal Lands
Several Executive Orders, Secretary's Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretary's Order that applies to both the Service and the
National Marine Fisheries Service (NMFS)-- Secretary's Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, the Appendix to S.O. 3206
explicitly recognizes the right of Tribes to participate fully in any
listing process that may affect Tribal rights or Tribal trust
resources; this includes the designation of critical habitat. Section
3(B)(4) of the Appendix requires the Service to consult with affected
Tribes when considering the designation of critical habitat in an area
that may impact Tribal trust resources, Tribally owned fee lands, or
the exercise of Tribal rights. That provision also instructs the
Service to avoid including Tribal lands within a critical habitat
designation unless the area is essential to conserve a listed species,
and it requires the Service to evaluate and document the extent to
which the conservation needs of the listed species can be achieved by
limiting the designation to other lands.
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy
are consistent with S.O. 3206. When we undertake a discretionary
exclusion analysis under section 4(b)(2) of the Act, in accordance with
S.O. 3206, we consult with any Tribe whose Tribal trust resources,
Tribally owned fee
[[Page 94672]]
lands, or Tribal rights may be affected by including any particular
areas in the designation. We evaluate the extent to which the
conservation needs of the species can be achieved by limiting the
designation to other areas and give great weight to Tribal concerns in
analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features that may require special management considerations
or protection and unoccupied areas that are essential to the
conservation of a species), without regard to land ownership. While
S.O. 3206 provides important direction, it expressly states that it
does not modify the Secretaries' statutory authority under the Act or
other statutes.
The proposed critical habitat designation includes the following
Tribal lands or resources: the Confederated Salish and Kootenai Tribes
of the Flathead Indian Reservation in Montana (Unit 3), the Blackfeet
Indian Reservation in Montana (Unit 3), and Jicarilla Apache Tribal
Trust Lands in New Mexico (Unit 6).
Flathead Indian Reservation Lands
In the previous final rules designating revised critical habitat
for lynx, published in the Federal Register on February 25, 2009 (74 FR
8616) and September 12, 2014 (79 FR 54782), we determined that the
benefits of excluding Flathead Indian Reservation Lands outweighed the
benefits of including them. We determined that exclusion of these
Tribal lands from the designation of critical habitat for the lynx will
not result in the extinction of the species because the Confederated
Salish and Kootenai Tribes of the Flathead Nation implement programs
for the conservation of the species, and physical and biological
features essential to it, in occupied areas. The protections afforded
to the lynx under the jeopardy standard will remain in place for the
areas considered for exclusion from revised critical habitat.
Therefore, and in light of Secretary's Order 3206 and Tribal management
of lynx and their habitat, we are considering excluding 186 mi\2\ (482
km\2\) of Flathead Indian Reservation Lands from the revised lynx
critical habitat designation. However, in the final rule, we will again
weigh the benefits of inclusion versus exclusion of these lands in the
final critical habitat designation.
Blackfeet Indian Reservation Lands & Jicarilla Apache Tribal Trust
Lands
Approximately 44 mi\2\ (114 km\2\) of Blackfeet Indian Reservation
Lands and 37 mi\2\ (97 km\2\) of Jicarilla Apache Tribal Trust lands
overlaps the area proposed for designation as critical habitat for the
Canada lynx in the Western United States. In light of Secretary's Order
3206, we will consider these lands for exclusion from the final
critical habitat designation. We will coordinate with these Tribes to
evaluate any programs that are implemented for the conservation of the
species, and physical and biological features essential to it, in
occupied areas on Tribal lands. We will weigh the benefits of inclusion
versus exclusion of these lands in the final critical habitat
designation.
Summary of Exclusions Considered Under 4(b)(2) of the Act
We have reason to consider excluding the following areas under
section 4(b)(2) of the Act from the final critical habitat designation
for the Canada lynx DPS in the Western United States. Table 2 below
provides approximate areas (mi\2\, km\2\) of lands that meet the
definition of critical habitat, but for which we are considering
possible exclusion under section 4(b)(2) of the Act from the final
critical habitat rule.
Table 2--Areas Considered for Exclusion by Unit for Canada Lynx Critical Habitat
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of
critical habitat Reasons for considering
Unit Specific area considered for exclusion
exclusion, in
mi\2\ (km\2\)
----------------------------------------------------------------------------------------------------------------
3. Northern Rockies.................... Tribal Lands: Flathead 186 (482) Confederated Salish and
Reservation, MT. Kootenai Tribes of the
Flathead Nation land
management plan with
considerations for
conserving lynx habitat
on Tribal lands within
the Reservation.
3. Northern Rockies.................... Tribal Lands: Blackfeet 44 (114) Existing land management.
Reservation, MT.
3. Northern Rockies.................... Montana DNRC Multi- 159 (413) Existing Habitat
species Habitat Conservation Plan (HCP)
Conservation Plan. with protections for
lynx habitat on all DNRC
State Trust lands.
4. North Cascades...................... Washington DNR Lynx 168 (435) Existing management plan
Habitat Management Plan. that includes
considerations for
conserving lynx habitat.
6. Southern Rockies.................... Tribal Lands: Jicarilla 37 (97) Existing land management.
Apache Tribal Trust
Lands, NM.
----------------------------------------------------------------------------------------------------------------
In conclusion, for this proposed rule, we have reason to consider
excluding the areas identified above from the final designation based
on other relevant impacts. We specifically solicit comments on the
inclusion or exclusion of such areas. We also solicit comments on
whether there are potential economic, national security, or other
relevant impacts from designating any other particular areas as
critical habitat. As part of developing the final designation of
critical habitat, we will evaluate the information we receive regarding
potential impacts from designating the areas described above or any
other particular areas, and we may conduct a discretionary exclusion
analysis to determine whether to exclude those areas under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 424.19. If
we receive a request for exclusion of a particular area and after
evaluation of
[[Page 94673]]
supporting information we do not exclude, we will fully describe our
decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563 and
14094)
Executive Order (E.O.) 14094 amends and reaffirms the principles of
E.O. 12866 and E.O. 13563 and states that regulatory analysis should
facilitate agency efforts to develop regulations that serve the public
interest, advance statutory objectives, and are consistent with E.O.s
12866 and 13563. Regulatory analysis, as practicable and appropriate,
shall recognize distributive impacts and equity, to the extent
permitted by law. 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 proposed rule in a manner consistent with these
requirements.
Executive Order 12866, as reaffirmed by E.O. 13563 and amended and
reaffirmed by E.O. 14094, 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.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), whenever an
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 effects 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 the agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities. The SBREFA amended the RFA to require Federal agencies to
provide a certification statement of the factual basis for certifying
that the rule will not have a significant economic impact on a
substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
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. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently,
only Federal action agencies would be directly regulated if we adopt
the proposed critical habitat designation. The RFA does not require
evaluation of the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities would be directly regulated by this rulemaking, the
Service certifies that, if made final as proposed, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 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 E.O. 14094 (88 FR 21879; April
11, 2023)); and (ii) is likely to have a significant adverse effect on
the supply, distribution, or use of energy. This rule is a significant
regulatory action under E.O. 12866. In our economic analysis, we did
not find that this proposed critical habitat designation revision would
significantly affect energy supplies, distribution, or 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.
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:
[[Page 94674]]
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandates'' include a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments, because much of the proposed
designation (91 percent) occurs on Federal lands. Furthermore, based on
an analysis conducted for the previous designation of critical habitat
in 2014 and extrapolated to this designation, we do not expect this
rule to significantly or uniquely affect small governments. Small
governments will be affected only to the extent that any programs
having Federal funds, permits, or other authorized activities must
ensure that their actions will not adversely affect the critical
habitat. Therefore, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Canada lynx in a takings implications assessment. The
Act does not authorize the Services to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for the Canada lynx, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, the appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat essential to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of critical habitat are
presented on maps, and the proposed rule provides several options for
the
[[Page 94675]]
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are 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.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) 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 and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
However, when we designate as ``critical habitat'' any of the areas
that fall within the jurisdiction of the U.S. Court of Appeals for the
Tenth Circuit, including this designation proposed for the Canada lynx,
we undertake a NEPA analysis for that critical habitat designation
consistent with the Tenth Circuit's ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996). We invite the public to comment on the extent to which this
proposed critical habitat designation may have a significant impact on
the human environment, or fall within one of the categorical exclusions
for actions that have no individual or cumulative effect on the quality
of the human environment. We will complete our analysis, in compliance
with NEPA, before finalizing this proposed rule.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(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 readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with joint Secretary's Order 3206 of
June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes.
On October 13, 2022, the Service sent a letter to Tribal partners
across the range of the Canada lynx in the Western United States,
indicating that we would be updating the SSA, explaining why it was
necessary to revise the SSA to inform this critical habitat revision,
and requesting additional information. We will coordinate with Tribes
that have lands within the boundary of this proposed critical habitat
revision to determine eligibility for exclusion of those lands from the
final designation of critical habitat. We will continue to work with
Tribal entities during the development of a final rule for the
designation of critical habitat for the Canada lynx.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Montana Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Montana
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Signing Authority
Martha Williams, Director of the U.S. Fish and Wildlife Service,
approved this action on November 18, 2024, for publication. On November
21, 2024, Martha Williams authorized the undersigned to sign the
document electronically and submit it to the Office of the Federal
Register for publication as an official document of the U.S. Fish and
Wildlife Service.
Proposed Regulation Promulgation
Accordingly, the U.S. Fish and Wildlife Services proposes to amend
part 17, subchapter B 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.
0
2. In Sec. 17.95, in paragraph (a), amend the entry for ``Canada Lynx
(Lynx canadensis)'' by:
0
a. Revising paragraphs (1) through (5);
0
b. Adding headings to the figures in paragraphs (6) and (7);
0
c. Revising paragraphs (8) through (10); and
0
d. Adding paragraph (11).
The revisions and additions read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(a) Mammals.
* * * * *
Canada Lynx (Lynx canadensis)
(1) Critical habitat units are depicted for States and Counties on
the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Canada lynx consist of the following
components:
(i) Snowshoe hare densities adequate to support lynx residency and
reproduction over time, distributed across large landscapes.
(ii) A mosaic of boreal/subalpine forest at variable forest
structural stages, the majority of which provide year-round dense
horizontal cover at ground or snow level.
(iii) Winter conditions that provide and maintain deep fluffy snow
for extended periods of time.
(iv) Spatial and temporal arrangements of habitat large enough (483
square miles (mi\2\) (>=1,250 square kilometers (km\2\))) to support
breeding populations.
[[Page 94676]]
(v) Permeable landscapes conducive to within-unit lynx daily
movements and dispersal.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created using the
Interagency Western Lynx Bio Team tier 1 polygons. These are based on
spatial distribution models that capture 95 percent of withheld and 90
percent of independent lynx GPS (Global Positioning System) locations
while accounting for minimum patch size necessary to support multiple
home ranges and high-quality habitat metrics. These areas were then
verified by species experts to contain the physical and biological
features essential to the conservation of the species. Critical habitat
units were mapped and analyzed using Environmental Systems Research
Institute (ESRI) ArcGIS Pro 2.9.11 Geographic Information System (GIS)
program. Area calculations were done in ArcGIS Pro using the North
American Datum (NAD) 1983 USA Contiguous Albers Equal Area Conic USGS
projection. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site,
<a href="https://www.fws.gov/species/canada-lynx-lynx-canadensis">https://www.fws.gov/species/canada-lynx-lynx-canadensis</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R6-ES-2024-0142 and Docket No.
FWS-R6-ES-2013-0101, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
Figure 1 to Canada Lynx (Lynx canadensis) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP29NO24.005
(6) * * *
Figure 2 to Canada Lynx (Lynx canadensis) paragraph (6)
* * * * *
(7) * * *
Figure 3 to Canada Lynx (Lynx canadensis) paragraph (7)
* * * * *
(8) Unit 3: Northern Rockies--The entirety or portions of Bonner,
Boundary, Clearwater, and Idaho Counties, ID, and Flathead, Glacier,
Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Pondera,
Powell, Ravalli, and Teton Counties, MT.
(i) Unit 3 consists of 7,959 mi\2\ (20,613 km\2\) located in
northwestern Montana and northern and east-central Idaho. Land
ownership within the unit is 90 percent Federal, 4 percent State, 3
percent Tribal, and 3 percent private.
(ii) Map of Unit 3 follows:
Figure 4 to Canada Lynx (Lynx canadensis) paragraph (8)(ii)
[[Page 94677]]
[GRAPHIC] [TIFF OMITTED] TP29NO24.006
(9) Unit 4: North Cascades--The entirety or portions of Chelan,
Okanogan, Skagit, and Whatcom Counties, WA.
(i) Unit 4 consists of 2,354 mi\2\ (6,097 km\2\) located in north-
central Washington. Land ownership within the unit is 93 percent
Federal and 7 percent State, with small parcels of private lands that
represent less than one-half of 1 percent of the unit.
(ii) Map of Unit 4 follows:
Figure 5 to Canada Lynx (Lynx canadensis) paragraph (9)(ii)
[[Page 94678]]
[GRAPHIC] [TIFF OMITTED] TP29NO24.007
(10) Unit 5: Greater Yellowstone Area--The entirety or portions of
Fremont, Lincoln, Sublette, and Teton Counties, WY.
(i) Unit 5 consists of 1,121 mi\2\ (2,902 km\2\) located in west-
central and northwestern Wyoming. Land ownership within the unit is
over 99 percent Federal and includes small (less than 4 mi\2\ (10
km\2\)) parcels of private and State lands.
(ii) Map of Unit 5 follows:
Figure 6 to Canada Lynx (Lynx canadensis) paragraph (10)(ii)
[[Page 94679]]
[GRAPHIC] [TIFF OMITTED] TP29NO24.008
(11) Unit 6: Southern Rockies--The entirety or portions of
Archuleta, Boulder, Chaffee, Clear Creek, Conejos, Dolores, Eagle,
Gilpin, Grand, Gunnison, Hinsdale, La Plata, Lake, Mineral, Montezuma,
Montrose, Ouray, Park, Pitkin, Rio Grande, Saguache, San Juan, San
Miguel, and Summit Counties, CO, and Rio Arriba County, NM.
(i) Unit 6 consists of 7,679 mi\2\ (19,889 km\2\) located in west-
central and southwestern Colorado and northern New Mexico. Land
ownership within the unit is almost 89 percent Federal, almost 9
percent private, 1 percent State, and less than 1 percent Tribal and
local government.
(ii) Map of Unit 6 follows:
Figure 7 to Canada Lynx (Lynx canadensis) paragraph (11)(ii)
[[Page 94680]]
[GRAPHIC] [TIFF OMITTED] TP29NO24.009
* * * * *
Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk
Management, and Analytics of the Joint Administrative Operations, U.S.
Fish and Wildlife Service.
[FR Doc. 2024-27767 Filed 11-27-24; 8:45 am]
BILLING CODE 4333-15-C
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</html>Indexed from Federal Register on November 29, 2024.
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