Rule2026-10846
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Rusty Patched Bumble Bee
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
June 1, 2026
Effective
July 1, 2026
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the rusty patched bumble bee (Bombus affinis), a bumble bee historically known to occur broadly across the eastern United States and portions of Canada, under the Endangered Species Act of 1973, as amended (Act). In total, we are designating approximately 1,534,951 acres (621,172 hectares) of occupied critical habitat in 14 units across 33 counties in 6 States.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 104 (Monday, June 1, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 104 (Monday, June 1, 2026)]
[Rules and Regulations]
[Pages 32516-32553]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10846]
[[Page 32515]]
Vol. 91
Monday,
No. 104
June 1, 2026
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Rusty Patched Bumble Bee; Final Rule
Federal Register / Vol. 91 , No. 104 / Monday, June 1, 2026 / Rules
and Regulations
[[Page 32516]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2024-0132; FXES1111090FEDR-267-FF09E21000]
RIN 1018-BH72
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Rusty Patched Bumble Bee
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the rusty patched bumble bee (Bombus affinis), a
bumble bee historically known to occur broadly across the eastern
United States and portions of Canada, under the Endangered Species Act
of 1973, as amended (Act). In total, we are designating approximately
1,534,951 acres (621,172 hectares) of occupied critical habitat in 14
units across 33 counties in 6 States.
DATES: This rule is effective July 1, 2026.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments and materials we received are available
for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-
R3-ES-2024-0132.
Availability of supporting materials: Supporting materials we used
in preparing this rule, such as the species status assessment report,
are available on the Service's website at <a href="https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis">https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
at Docket No. FWS-R3-ES-2024-0132, or both. The coordinates or plot
points or both from which the critical habitat maps are generated are
included in the decision file and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2024-0132.
FOR FURTHER INFORMATION CONTACT: Robert Tawes, Field Supervisor, U.S.
Fish and Wildlife Service, Minnesota-Wisconsin Ecological Services
Field Office; telephone 612-240-6343; <a href="/cdn-cgi/l/email-protection#1e6c717c7b6c6a416a7f697b6d5e78696d30797168"><span class="__cf_email__" data-cfemail="0e7c616c6b7c7a517a6f796b7d4e68797d20696178">[email protected]</span></a>. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), when we determine that any species warrants listing as an
endangered or threatened species, we are required to designate critical
habitat, to the maximum extent prudent and determinable. Designations
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.).
What this document does. This rule designates critical habitat for
the rusty patched bumble on approximately 1,534,951 acres (621,172
hectares) of occupied critical habitat in 14 units across 33 counties
in 6 States.
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 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.
Previous Federal Actions
Please refer to the proposed critical habitat rule (89 FR 93245)
for the rusty patched bumble bee published on November 26, 2024, for a
detailed description of previous Federal actions concerning this
species.
Peer Review
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 (<a href="https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf">https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf</a>), we solicited independent scientific review of the information
contained in the proposed critical habitat designation for the rusty
patched bumble bee. We sent the proposed rule to three independent peer
reviewers and received two responses. The peer reviews can be found at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2024-0132. In
preparing this final rule, we incorporated the results of these
reviews, as appropriate. A summary of the peer review comments and our
responses can be found in the Summary of Comments and Recommendations
below.
Summary of Changes From the Proposed Rule
We began coordinating with the 88th Readiness Division (RD) of the
Army Reserve prior to publication of the proposed critical habitat rule
at their request. After we published the proposed critical habitat
rule, the 88th RD updated their Integrated Natural Resources Management
Plan (INRMP) to include the rusty patched bumble bee. We concluded that
the 88th RD INRMP provides a benefit to the rusty patched bumble bee.
Consequently, we are exempting the lands covered by the INRMP that
intersected with lands identified as proposed critical habitat. There
are two Army Reserve Centers (ARC) in two States, totaling
approximately 49 acres (20 hectares) of land included in the INRMP that
are exempted from this final designation. These areas are Machesney
Park ARC in Illinois and Fort Snelling ARC in Minnesota. The exemptions
are also discussed in the Exemptions section below.
Based on additional information we received during the public
comment period and a request to exclude lands under section 4(b)(2) of
the Act, we are also excluding several areas from the designation that
are enrolled in the Nationwide Candidate Conservation Agreement for
Monarch Butterfly on Energy and Transportation Lands. We are excluding
a total area of approximately 79,859 acres (32,318 hectares) across 11
units in this final rule. The exclusion analysis is summarized below in
the Consideration of Impacts under Section 4(b)(2) of the Act section.
Additionally, the final designation decreased in overall acreage
from the proposed designation by approximately 20,887 acres (8,453
hectares) due to discovery of a few imprecise data locations. The
iNaturalist database accepts any level of accuracy for location data.
The rusty patched bumble bee data accuracy ranged from 0 to
approximately 6.5 million feet (ft) (1,982,493 meters (m)), and we
concluded that range was not an
[[Page 32517]]
acceptable level of precision for our critical habitat analysis because
it far exceeds a typical survey site size. Therefore, points that had a
greater than 328-ft (100-m) range of accuracy were removed from the
dataset, which resulted in smaller critical habitat units in some
cases. These data may have been inaccurate data points for rusty
patched bumble bee locations, and we discovered this after the proposed
designation had already published.
Also based on information received during the public comment
period, we have removed the term ``rodenticides'' as an example of a
pesticide application that may require special management consideration
from the unit descriptions of each critical habitat unit. Although
rodenticides are a threat to the rusty patched bumble bee, their use is
almost exclusively outside the realm of section 7 of the Act (typically
there is no Federal nexus for their use), which makes it highly
unlikely that the need to consult would arise in the critical habitat
units. Maintaining the term in the final rule would likely create
misconceptions around the regulatory impact of this critical habitat
designation.
We clarified some of the definitions related to our physical or
biological features based on requests to do so from the peer reviewers
and public commentors, additional information they provided, and
additional published studies that were not previously considered.
Lastly, we corrected a spelling error in the name of Unit 14. The
proposed critical habitat rule labeled Unit 14 ``Black Creek
Mountain,'' when the correct spelling is actually ``Back Creek
Mountain.''
Summary of Comments and Recommendations
In the proposed rule published on November 26, 2024 (89 FR 93245),
we requested that all interested parties submit written comments on the
proposal by January 27, 2025. We also contacted appropriate Federal and
State agencies, Tribal entities, scientific experts and organizations,
and other interested parties and invited them to comment on the
proposal. A newspaper notice inviting general public comment was
published in the USA Today on November 29, 2024. We did not receive any
requests for a public hearing. All substantive information received
during comment periods has either been incorporated directly into this
final determination or is addressed below.
Peer Reviewer Comments
As discussed in Peer Review above, we received comments from two
peer reviewers on the proposed critical habitat designation. We
reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the contents of the
proposed rule. Peer reviewer comments are addressed in the following
summary.
Both peer reviewers had concerns with our Criteria Used to Identify
Critical Habitat used for delineating the unit boundaries, specifically
criteria number one which says, ``areas within a contiguous High
Potential Zone (HPZ; for more information on High Potential Zones see
the Criteria Used to Identify Critical Habitat section below) with 50
or more positive observations since 2007.'' Peer reviewers stated that
the number 50 was arbitrary and unsupported. After receiving this
feedback, we undertook additional analysis to explore this concern. We
conclude that this criterion was valid for use in delineating critical
habitat, and we further explain our initial intent and additional
analysis below.
Both peer reviewers (and several public commenters, see Public
Comments, below) advocated for including additional areas in the
critical habitat designation because there are several additional areas
that the rusty patched bumble bee occupies or could occupy. We are not
able to incorporate additional areas that include suitable habitat for
the species but do not meet the definition of critical habitat. 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; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this Act, upon a
determination by the Secretary that such areas are essential for the
conservation of the species.'' These additional areas mentioned by the
peer reviewers, though important, do not meet the definition of
critical habitat as described in more detail below. While they may be
important for the recovery of the rusty patched bumble bee (along with
other areas of suitable habitat), they do not meet the definition of
critical habitat.
The occupied areas that meet the definition of critical habitat for
rusty patched bumble bee contain the physical or biological features
essential to the conservation of the species and meet the Criteria Used
to Identify Critical Habitat. These areas support a general
conservation strategy for rusty patched bumble bee that identifies
areas that support the healthiest remaining populations, have limited
interactions with managed bees, and have adequate pollen and nectar
resources for the entire flight season. These areas also support
genetically distinct populations of rusty patched bumble bees that are
important for the conservation of the species.
Peer reviewers also provided updated information related to species
biology and general expertise that are incorporated into this final
designation.
Peer Reviewer Comments
(1) Comment: Peer reviewers disagreed with our 50-observation
criterion used for delineating critical habitat. They stated this
criterion was biased by human survey patterns, this was an arbitrary
number, and that we did not provide an adequate rationale for choosing
that number.
Our response: Critical habitat designations can only contain areas
that meet the definition of critical habitat as established by the Act.
Critical habitat is, in part, those areas that contain physical or
biological features essential to the conservation of the species or as
described by the U.S. Supreme Court, those areas that are
``indispensable'' to the conservation of the listed species
(Weyerhaeuser Co. v. United States Fish & Wildlife Serv., 586 U.S. 9
(2018)). During our analysis of which areas meet the definition of
critical habitat, we must develop criteria that help us delineate these
areas that meet the definition of critical habitat. Areas that have had
relatively high observations over time likely support the healthiest
and most robust remaining populations of rusty patched bumble bee. We
concluded that these areas are indispensable to the conservation of the
species.
We selected 50 observations as a starting point in our analysis to
ensure that we were including all occupied habitat that supports a
relatively large and sustained number of bees and specifically those
areas that are known to be biologically important to the species. One
of the criteria used to identify critical habitat is overlapping areas
that likely have multiple colonies interacting with each other. A
minimum of 50 verified rusty patched bumble bee observations since 2007
within estimated foraging and dispersal distances of one another likely
represents multiple, interacting colonies
[[Page 32518]]
existing over time, rather than observations of a single individual. No
commentor or reviewer suggested an alternative number to 50
observations, or a rationale to support using any other number.
After reviewing the comments received, we conducted additional
analyses to evaluate whether the use of 50 observations was a
biologically appropriate criterion. We used a spatial analysis to
overlay the results from an occupancy model (Ellis et al. 2025,
entire), published subsequent to the proposed rule, to evaluate rusty
patched bumble bee occupancy estimates among 3.9 square mile (mi\2\; 10
square kilometer (km\2\)) grid cells that do and do not contain
proposed critical habitat. These data spatially incorporate the same
ecological considerations we represented with our metric of 50 verified
observations since 2007; that is, areas which represent multiple,
interacting colonies existing over time. The model corrects for
detection bias, non-detection or negative survey results, and estimated
rates of extirpation and recolonization from neighboring grid cells
(Ellis et al. 2025, pp.4-5). Further, with the correction for detection
biases, concerns relating to survey effort bias and detection
probability are also addressed (Ellis et al. 2025, pp. 4-5).
All proposed critical habitat occurs on occupied habitat within a
subset of the areas delineated as high potential zones (HPZs; the areas
with the highest likelihood of rusty patched bumble bee presence). The
HPZs were created based on verified rusty patched bumble bee
observation points from 2007-2022, estimated foraging and dispersal
distances, and barriers to dispersal (more information on HPZs can be
found online at <a href="https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee">https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee</a>). Based on model results (Ellis et al. 2025,
pp. 6-7, Ellis pers. comm. 2025) and using occurrence data from 2017
(the year rusty patched bumble bee was listed) to 2022, the mean
average occupancy in the critical habitat units that overlap with HPZs
is 0.69; mean average occupancy in all other HPZs is 0.50; and mean
average occupancy of the species in areas outside of any HPZs is 0.10.
In other words, the critical habitat units delineated using our
original criteria cover areas that have a 59 percent higher average
occupancy by rusty patched bumble bee since the time of listing than
areas outside of the HPZs and a 19 percent higher average occupancy
than HPZs with fewer than 50 recent observations of the species. The
model focused on the Midwest (Ellis et al, p. 3), therefore the Back
Creek Mountain Unit was not included in the model so that unit is not
included in our analysis. We refer the reader to Ellis et al. (2025,
pp. 2-4, 8) for important assumptions on the occupancy data used for
their analyses.
(2) Comment: The peer reviewers and some public commenters stated
that the designation was improperly limited to an assessment of known
remaining populations, not of the ``physical or biological features
essential to the conservation'' of the species. The peer reviewers did
not feel that we adequately considered unoccupied critical habitat.
They had concerns with a potential inconsistency between the Recovery
Plan for this species and the proposed critical habitat designation.
Per the commenters, the 2021 Recovery Plan defines conditions for
recovery as including existence of multiple healthy populations in each
of the five Conservation Units, but the proposal did not include
critical habitat in two of these Conservation Units (e.g., Conservation
Units 3 and 5), therefore potentially limiting recovery efforts.
Our Response: We identified the physical or biological features for
the species based on its individual, population, and species level
needs, as they relate to habitat requisites rather than population
demographic metrics. To aid us in determining which areas meet the
definition of critical habitat, we used a conservation strategy to help
us identify key areas that contain the physical or biological features.
This identification was not limited to only areas that were occupied at
the time of listing. However, our analysis did not identify any
specific geographic areas that were unoccupied at the time of listing,
that could be identified as essential for the conservation of the
species and that met the definition of critical habitat. Instead, we
found there is a large amount of suitable unoccupied habitat, available
for the species to use, throughout its historical range in each of the
five Conservation Units identified in the 2021 Recovery Plan. For
example, within Conservation Unit 5, there are 21,188,862 acres
(8,574,828 hectares) of deciduous forest habitat (National Land Cover
Database, <a href="https://www.usgs.gov/centers/eros/science/national-land-cover-database">https://www.usgs.gov/centers/eros/science/national-land-cover-database</a>), some of which may be used for overwintering, but we
were unable to identify any specific deciduous forest habitat in that
Unit that meets the definition of critical habitat. Furthermore,
recovery efforts are not restricted to areas that are designated as
critical habitat. A lack of designated critical habitat does not
preclude recovery efforts in either occupied or unoccupied areas. It is
important to note that critical habitat is one of several tools
available to support species recovery, and we are required to designate
only those areas that meet the definition of critical habitat under the
Act. Other mechanisms may, in some cases, provide more targeted or
effective conservation benefits depending on the context (e.g., efforts
to reduce threats and foster public and stakeholder engagement).
Recovery efforts for the rusty patched bumble bee are not limited
by the decision to not include Conservation Units 3 and 5 in the
critical habitat designation. Conservation actions outlined in the
Recovery Plan can still be implemented regardless of a critical habitat
designation. Finally, rusty patched bumble bees are still protected
under section 9 and section 7 of the Act when it is found in these
Conservation Units because it is listed as an endangered species
wherever it is found.
(3) Comment: One peer reviewer stated the overwintering habitat
description of upland closed-canopy forest interior does not encompass
the full scope of areas where rusty patched bumble bee may overwinter.
Upland closed-canopy forest interior is limited in occupied urban and
suburban areas. They further stated that queens may overwinter within
approximately 7.5 miles (mi; 12 kilometers (km)) of any extant
sighting, as spring queens may travel approximately 6.2 mi (10 km) in
search of nesting sites and the foragers produced at that site may
travel an additional 0.6-1.2 mi (1-2 km) from their nests.
Our Response: We agree that the species may overwinter in several
habitat types, but the best available scientific information does not
identify other specific habitat types used for wintering by the rusty
patched bumble bee. The only observation of an overwintering rusty
patched bumble bee queen was about 0.3 mi (0.5 km) into a maple forest
habitat (Herrick, University of Wisconsin-Madison Landscape Arboretum,
2016 and 2024, pers. comm.). Based on that observation, together with
overwintering observations of other bumble bee species, we concluded
that successful overwintering likely occurs in shaded areas to prevent
early queen emergence due to warming soil temperatures (Alford 1969,
pp. 149-169). Forests are consistently shaded natural areas. Therefore,
we concluded overwintering likely occurs in forests. However, we have
clarified our definition of overwintering habitat in response to the
comments. Specifically, we note that rusty patched bumble bees may
[[Page 32519]]
successfully overwinter in any suitable contiguous forest patches
(i.e., forested areas that provide pollen and nectar for immediate
spring queen foraging after emergence from diapause, leaf litter or
duff for burrowing, with uncompacted soils and not dominated by
understory invasive plant species, like common buckthorn, (Rhamus
cathartica) that contain sufficient shade). Suitable forest patches
greater than 82 feet (ft; 25 meters (m)) from a non-forested edge are
buffered from edge influences (Harper et al. 2005, p. 774) and
therefore are more likely to have sufficient shade to prevent early
queen emergence.
(4) Comment: One peer reviewer stated that high density managed
bees (e.g., urban honey beekeeping) occurs within the proposed units,
yet we do not include habitat within agricultural matrices, which may
provide floral resources outside of periods when managed bees are being
used in those landscapes.
Our Response: We evaluated all areas in the current and historical
range of the rusty patched bumble bee to determine which areas meet the
definition of critical habitat based on the physical or biological
features and the criteria for delineating critical habitat, and we
acknowledge that areas in agricultural landscapes may contain floral
resources used by the species. There is a large amount of unoccupied
and occupied suitable habitat within the historical range of the rusty
patched bumble bee, but no additional areas meet the definition of
critical habitat. The areas designated as critical habitat are those
areas that contain the physical or biological features essential to the
conservation of the species; these areas support the healthiest known
populations of rusty patched bumble bee that remain today and are
indispensable to the conservation of the species.
Critical habitat is just one tool used in the recovery of listed
species. Other tools include (but are not limited to) the
implementation of the Recovery Plan, education and outreach,
integration of best management practices into land use planning (e.g.,
voluntary habitat restoration and management) and, Conservation Benefit
Agreements (and other non-Federal agreements). Other areas that support
smaller populations of rusty patched bumble bee or contain unoccupied
suitable habitat will be important to the recovery of the species.
However, these areas do not meet the definition of critical habitat.
(5) Comment: Both peer reviewers suggested that the critical
habitat unit designation should rely on crop-specific, spatially
explicit estimates of pesticide use, managed pollinator needs or uses,
and distribution of large apiaries to better address pesticide and
pathogen exposure that may occur in alternative agricultural land uses.
Our Response: To address concerns around the potential exposure to
pesticides and pathogens we evaluated the proximity of rusty patched
bumble bee critical habitat units to commercial apiaries, large-scale
agricultural land use, and associated pesticide use.
We considered using apiary location data in our analysis but
concluded that we do not have a reliable dataset with enough apiary
locations (e.g., covering a large enough geographic scope for a
meaningful analysis) and details (e.g., managed bee species, dates of
use, stocking rates). Generally, the locations of many apiaries are not
publicly available.
To analyze the proximity of large-scale agriculture to the critical
habitat units and crop-specific and spatially explicit estimates of
pesticide use, we first conducted a spatial analysis to calculate the
area of each specific agricultural crop type within the critical
habitat units (e.g., ``corn'' or the agricultural classification
``grassland/pasture'') using the National Land Cover Database layer and
classifications (<a href="https://www.usgs.gov/centers/eros/science/national-land-cover-database">https://www.usgs.gov/centers/eros/science/national-land-cover-database</a>). Agricultural acres were calculated for each of
the 14 units and within 6.2 mile (10 km) surrounding each of the 14
units, to determine if there were substantial differences in the
proportion of agricultural land uses and dominant crop types at the
estimated maximum dispersal distance for the rusty patched bumble bee
(6.2 mi, 10 km) around these units. These data were then summarized
into the top 5 agricultural crop types within the 14 units and again at
the 6.2 mi (10 km) buffered distance. Once we determined the dominant
agricultural uses within each unit and in the surrounding 6.2 mi (10
km), we evaluated the typical pesticides used on each of the top five
crops. Corn, soybeans, grassland/pasture, alfalfa (grown for hay/
forage), and winter wheat were the top five crops within the unit and
surrounding 6.2-mile area for all units except Unit 14. The top five
crops in Unit 14 were deciduous forest, mixed forest, evergreen forest,
grassland/pasture, and other hay (not alfalfa). Of the top 5
agricultural crops within both the critical habitat units and the 6.2
mi (10 km) buffers, none of these typically use commercially managed
bees.
The limited pesticide data that are publicly available are time-
limited estimates reported at scales much larger than the critical
habitat units (e.g., USGS pesticide synthesis data (<a href="https://water.usgs.gov/nawqa/pnsp/usage/maps/county-level">https://water.usgs.gov/nawqa/pnsp/usage/maps/county-level</a>) reports 1992-2019
data at the county and state levels). We are unable to accurately
extrapolate the pesticide use by crop type within units, and any
attempt to do so would result in averaged estimates rather than unit-
specific data. However, a summary of all the major publicly available
pesticide data sets (n=5) between 1992-2012 showed that 34-44 percent
of soybeans and 79-100 percent of corn hectares were treated with
neonicotinoid seed treatments (NSTs) in 2011 (Douglas and Tooker 2015,
entire). The NSTs are also used in winter wheat and other crops.
The ratio of crop acreage within the units is much less than the
ratio outside of the units. For example, within Unit 10 (McHenry), the
top five crop types by acre are grassland/pasture (10,709 ac (4,333
ha)), corn (5,921 ac (2,396 ha)), soybeans (4,120 ac (1,667 ha)),
alfalfa (510 ac (206 ha)), and winter wheat (380 ac (154 ha)). Buffered
at 6.2 mi (10 km), the top five crop types for Unit 10 are corn (52,935
acres (21,422 ha)), grassland/pasture (35,845 ac (14,505 ha)), soybeans
(31,034 ac (12,559 ha)), alfalfa (5,801 ac (2,347 ha)), and winter
wheat (3,907 ac (1,581 ha)). This same pattern exists for all critical
habitat units, except the dominant crop types in and surrounding Unit
14 are different from the other units (i.e., Unit 14 is dominated by
deciduous forest, mixed forest, evergreen forest, grassland/pasture,
and other hay (not alfalfa) within the unit and within the 6.2 mi (10
km) buffer). Thus, while the agricultural acres increase substantially
outside of the units (at the 6.2 mi (10 km) buffered distance), the
crop types remain the same. Therefore, the types of pesticides in these
areas (predominantly NSTs) do not change.
(6) Comment: One peer reviewer and several public commenters
pointed out that we did not define ``large scale'' or ``industrial''
agriculture.
Our Response: Generally, large scale, intensive or industrial
agriculture is agriculture which is designed for maximum yield and
profit, and which typically relies at least in part on advanced
technology, chemical inputs, and/or extensive irrigation. The U.S.
Department of Agriculture (USDA) does not have an official definition
of ``industrial agriculture'', but the term generally refers to large-
scale, high-input farming systems that rely on mechanization, synthetic
fertilizers, and pesticides to maximize crop and livestock yields.
[[Page 32520]]
Comments From States
(7) Comment: Virginia Department of Wildlife Resources (VADWR)
commented that the critical habitat designation will limit their
ability to manage habitat to meet their goals of restoring, creating,
and managing native ecosystems for biodiversity, public access, and
wildlife-related recreation.
Our Response: The critical habitat designation will have no
additional regulatory effect on projects to manage habitat by the state
of Virginia where there is no Federal nexus. Critical habitat
designations only require Federal agencies to use their authorities to
conserve endangered and threatened species and consult with us about
actions that they carry out, fund, or authorize to ensure that they
will not destroy or adversely modify critical habitat.
Unit 14 is largely owned by the U.S. Forest Service, making up
approximately 90 percent of the unit. To facilitate the consideration
of rusty patched bumble bees when conducting habitat restoration and
maintenance in this largely forested area, we coordinated with the
Eastern and Southern Regions of the U.S. Forest Service and are using
consultation tools to facilitate their work. For example, we developed
a proactive conservation approach to streamline section 7(a)(2)
consultations for projects that may affect the rusty patched bumble bee
on the Monongahela and George Washington and Jefferson National Forests
(in West Virginia and Virginia). As a result, we issued a programmatic
biological opinion outlining Forest Service habitat management actions
that provide conservation benefits for the rusty patched bumble bee.
The biological opinion also identified several possible conservation
measures for each management action that when implemented, which will
help minimize adverse effects to the rusty patched bumble bee. This
consultation included all the rusty patched bumble bee habitat where
the High Potential Zones (HPZs, mapped areas where the Service
recommends consultations) and the two National Forests overlapped; this
area largely coincides with the Back Creek Mountain Unit (Unit 14). We
anticipate that the programmatic biological opinion for the species
will also streamline consultations related to critical habitat
designations in the two National Forests and streamline section 7
consultations for forest habitat management in other critical habitat
units by providing a framework for other partners to use for similar
activities. Further, this consultation and the resulting conservation
measures could be used by other entities interested in conservation of
the species.
(8) Comment: The VADWR commented that the Unit 14 designation does
not offer enhanced rusty patched bumble bee conservation because Unit
14 overlaps considerably with the mapped HPZs in Virginia and the HPZs
are already being used to trigger section 7 consultations on the
species.
Our Response: The benefits of including lands in critical habitat
can be regulatory, educational, or to aid in recovery of species as
generally discussed throughout Consideration of Impacts Under Section
4(b)(2) of the Act below. For rusty patched bumble bee, the benefits of
critical habitat include public awareness of the presence of species
and the importance of habitat protection, and, where a Federal nexus
exists, increased habitat protection for rusty patched bumble bee due
to protection from destruction or adverse modification of critical
habitat.
Consultations under section 7 of the Act require that agencies
ensure their activities are not likely to jeopardize the continued
existence of federally listed species, like the rusty patched bumble
bee. These consultations consider activities that may affect the
species and often its habitat. However, under section 7 of the Act, the
agencies are also required to ensure their activities will not likely
adversely modify designated critical habitat. Regulations implementing
these sections of the Act define ``jeopardize the continued existence
of'' as: ``to engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of both
the survival and recovery of a listed species in the wild by reducing
the reproduction, numbers, or distribution of that species,'' and
''destruction or adverse modification'' as: ''a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the conservation of a listed species'' (see 50 CFR 402.02). Such
alterations include, but are not limited to, alterations adversely
modifying any of those physical or biological features that were the
basis for determining the habitat to be critical. As required by the
Act, we designate as critical habitat those areas occupied by the
species at the time of listing and that contain the physical or
biological features essential to the conservation of the species and
which may require special management considerations or protection.
Public Comments
(9) Comment: Several public commenters stated we should add
additional areas to the critical habitat designation. Specifically, one
commenter said we failed to provide enough habitat to meet recovery
goals, ignored unoccupied habitat and two Conservation Units, and did
not include substantial areas that should be part of the critical
habitat designation. The commenters stated that failure to designate
critical habitat in unoccupied areas and agricultural areas diminishes
the potential for recovery of the rusty patched bumble bee. Other
commenters suggested that we should also designate other occupied areas
(or all occupied areas) as critical habitat. Lastly, commenters
suggested that we should include agricultural lands where rusty patched
bumble bees are present. They assert that these are the most at-risk
populations and need the most protection.
Our Response: We designate areas that meet the definition of
critical habitat under the Act. Critical habitat is just one tool used
to recover species. Some species may not have designated critical
habitat, and we still work to recover these species. We do not identify
acreages of critical habitat thresholds needed to recover a species in
our recovery plans.
With respect to unoccupied habitat, the rusty patched bumble is a
habitat generalist that historically occupied a relatively large range
across a broad spectrum of habitat types. Sufficient suitable habitat
exists throughout the historical range for rusty patched bumble bee
recovery, and there are no specific unoccupied areas that are essential
for the conservation of the species. See the Criteria Used to Identify
Critical Habitat section below for more information. Recovery efforts
may still take place in areas where rusty patched bumble bee is not
present, but the best scientific data do not currently identify any
specific unoccupied geographical areas that are essential for the
conservation of the species (i.e., meet the definition of critical
habitat). Accordingly, we have not designated any unoccupied critical
habitat. Designating critical habitat does not ``provide'' additional
habitat for a species. Critical habitat is one of several resources
used to recover a species and must be designated only in areas that
meet the definition of critical habitat.
Not all occupied areas meet the definition of critical habitat;
therefore, it would be inappropriate to include such areas in the
designation. In this case, areas that are only occasionally
[[Page 32521]]
occupied or support small populations and do not contain the physical
or biological features essential to the conservation of the rusty
patched bumble bee do not meet the definition of critical habitat.
See our response to Comment (4) above, related to the lack of
agricultural areas included in the critical habitat designation.
Furthermore, even if we were to designate agricultural areas as
critical habitat (though we continue to maintain that there are no
viable reasons to do so), under section 4(b)(2), we may exclude these
areas from critical habitat if the benefits of exclusion outweigh those
of inclusion, so long as exclusion will not result in extinction of the
species.
(10) Comment: One public commenter provided more information about
proposed Unit 7, specifically that the unit in Madison, Wisconsin
includes lands managed by the U.S. Forest Service Forest Products
Experimental Laboratory, University of Wisconsin Madison, hospitals and
other developed lands that may not contain the physical or biological
features essential to the conservation of the rusty patched bumble bee.
Our Response: We have included the additional ownership information
in the unit description. The critical habitat designation overlaps a
great deal of developed areas, such as lands covered by buildings,
pavement, and other structures. These buildings, pavement, and other
structures are not designated as critical habitat themselves because
they lack the physical or biological features necessary for the rusty
patched bumble bee. However, the physical or biological features for
the rusty patched bumble bee are interspersed throughout the developed
lands at such a scale that they cannot be mapped. 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 structures.
Any such structures inside critical habitat boundaries shown on the
maps of this rule have been excluded by text in the rule and are not
designated as critical habitat.
(11) Comment: Several commenters urged us to designate additional
areas adjacent to proposed Unit 14 in the Appalachians due to the rusty
patched bumble bee's genetic distinctiveness in this area and the
unique ecological setting.
Our Response: We have designated a contiguous area in the
Appalachian region (Unit 14) based on areas that meet the definition of
critical habitat. The Appalachian unit represents a large and
sufficient proportion of this genetically important and ecologically
unique area. Following our methodology (see the Criteria Used to
Identify Critical Habitat section), we identified areas in the
Appalachians that contained 50 or more recent observations of the
species or were genetically distinct from other Appalachian areas and
were buffered from large-scale agriculture. Only one contiguous area
(Unit 14) had 50 recent observations of the species. While additional
areas show some genetic variation within the Appalachians, all the
sampled sites in the area fell within the same genetic cluster (Mola et
al. p. 6-7). Therefore, additional areas were not identified by our
methodology. A lack of critical habitat does not prevent conservation
for the rusty patched bumble bee from occurring in areas outside of the
designated critical habitat. In addition, projects with a federal nexus
that overlap with areas where there is a high likelihood of species
presence (i.e., mapped HPZs) will still be considered in section
7(a)(2) consultations.
(12) Comment: Several commenters suggested that we designate
corridors between proposed units as critical habitat, stating that
these areas would provide additional opportunities for species
interactions, support genetic exchange, and provide resilience from
environmental stressors such as disease.
Our Response: Our conservation strategy and criteria for
delineating critical habitat include considerations for genetic
diversity and prevention of inbreeding, as well as resilience to
stressors. As mentioned in the proposed rule, 50 verified rusty patched
bumble bee observations since 2007 within the estimated foraging and
dispersal distances likely represents multiple, interacting colonies
existing over time, which facilitates genetic mixing. The proposed
critical habitat polygons included some small-scale agricultural lands
and agricultural lands that employ organic practices (though this was
not a specific land cover type or land use designation used in our
analysis), as well as connections between individual HPZs--notably
within Units 1, 7 and 8.
Additionally, critical habitat designations do not specifically
provide opportunities for species interactions, nor does the lack of a
critical habitat designation prevent the opportunity. Though the areas
suggested for critical habitat by the commenters are important
habitats, they do not meet the definition of critical habitat because
they do not contain the physical or biological features essential to
the conservation of the species and do not meet our criteria for
inclusion.
(13) Comment: One commenter suggested that all areas that would be
enrolled in an anticipated Nationwide Conservation Benefit Agreement
for Bumble Bees on Energy and Transportation Lands (bumble bee CBA)
should be excluded from the rusty patched bumble bee critical habitat
designation.
Our Response: Individuals who enroll in the 11-species bumble bee
CBA will receive formal assurances that if they fulfill the conditions
of the CBA, we will not require any additional or different management
activities by the participants without their consent. The bumble bee
CBA was signed on May 1, 2026; however, no areas have been enrolled in
this program as of this date and thus cannot be considered for
exclusion at this time. Additionally, we anticipate that many of the
same partners participating in the monarch CCAA will enroll their lands
in the bumble bee CBA, in which case these overlapping areas would
already be excluded from critical habitat. Once enrollment in the CBA
begins, the bumble bee CBA will provide conservation benefits for the
rusty patched bumble bee while providing regulatory assurances for
those enrolled. Additionally, if we have a substantial number of
enrollees in the bumble bee CBA, we could be petitioned to revise
critical habitat under the Act or we may discretionarily revisit the
critical habitat to determine whether those areas should be excluded
from critical habitat under section 4(b)(2) of the Act.
(14) Comment: The Energy and Wildlife Action Coalition (EWAC)
encouraged the Service to reconsider the breadth of the proposal. The
EWAC stated that projects planned within or near areas designated as
critical habitat and that have a Federal nexus will experience delay
and increased costs associated with a section 7 consultation, even
where surveys demonstrate rusty patched bumble bee absence from the
project area.
Our Response: Projects with a Federal nexus that overlap with HPZs
consult with the Service regardless of the critical habitat
designation. In HPZs with suitable habitat, conducting surveys would
not relieve the Federal agency of its requirement to consult. Areas
that are not habitat within an HPZ, such as buildings, pavement, and
other structures, are not designated as critical habitat, and no
consultation is needed (See Criteria Used to Identify Critical
Habitat). As described in the economic screening analysis, all areas
designated as critical habitat for the rusty patched bumble bee are
considered occupied and therefore
[[Page 32522]]
already require section 7 consultation for activities that ``may
affect'' the species independent of any critical habitat designation.
The screening analysis projected additional administrative efforts to
evaluate the potential for adverse modification of the rusty patched
bumble bee critical habitat during the consultation process (IEc 2025,
p. 11). As part of the consultation process, even if surveys are
conducted that demonstrate absence of the species, the project
proponent would still have to consider the critical habitat
designation.
The critical habitat designation is based, in part, on the presence
of rusty patched bumble bee. As confirmed in the ``Rusty Patched Bumble
Bee (Bombus affinis): Endangered Species Act Section 7(a)(2) Voluntary
Implementation Technical Assistance'' (available online <a href="https://www.fws.gov/media/esa-section-7a2-voluntary-implementation-technical-assistance-rusty-patched-bumble-bee">https://www.fws.gov/media/esa-section-7a2-voluntary-implementation-technical-assistance-rusty-patched-bumble-bee</a>), projects with a Federal nexus
occurring within or affecting HPZs require section 7 consultations to
assess potential adverse effects to the species. Once critical habitat
is designated in these occupied areas, consultations in these critical
habitat units would also need to consider potential for destruction or
adverse modification to critical habitat. In recognition of the
additional requirement to consider critical habitat in the section 7
consultation, the costs of this additional layer of compliance is
quantified in the economic screening analysis. While we anticipate
little to no additional consultations solely due to the designation
because the areas are already considered to be occupied by the species,
we note that additional analyses would be required to determine the
effects of the action on the critical habitat in addition to the
effects on the species. For the most part, the additional costs of
avoiding the destruction and adverse modification of critical habitat
are anticipated to be minimal because the measures implemented to
minimize impacts to habitat to avoid jeopardizing the species are
expected to prevent the destruction and adverse modification of
critical habitat. As a result, the additional compliance costs
associated with critical habitat designation are expected to be
minimal. Nevertheless, in our economic screening analysis for the rusty
patched bumble bee, we acknowledge the increased complexity of Section
7 consultations that consider critical habitat in addition to the
species presence and quantify that administrative burden.
We acknowledge in rare cases that if an action agency chooses to
conduct surveys and determines the rusty patched bumble bee does not
occur in the action area and they determine there will be no effect to
the species, the critical habitat designation could trigger the need to
consult, which would result in costs that are solely based on the
critical habitat. Since the species listing in 2017, no action agency
has chosen to conduct surveys to establish absence rather than consult
with us on the species. We anticipate that this situation will continue
to be exceedingly rare.
(15) Comment: The EWAC commented that the critical habitat
designation will increase delays and costs to electric generation and
transmission and distribution projects, despite the ongoing efforts of
such entities to proactively engage in rusty patched bumble bee
conservation efforts. The comment states that designation of critical
habitat adds an additional regulatory hurdle that could render some
development projects infeasible, create new barriers, and dampen
industry efforts to employ proactive, creative solutions to addressing
complex conservation and electric reliability issues. The comment
further describes that where the designation overlaps with existing
electric infrastructure, it will likely increase facility management
costs, increasing the electricity costs to customers.
Our Response: The rusty patched bumble bee has been listed as an
endangered species since 2017. Since that time, we have consulted on
projects and activities with a Federal nexus and made recommendations
for project modifications to ensure these projects and activities
minimize or avoid adverse effects on the species. In developing the
critical habitat rule, we considered the potential for critical habitat
to result in different project modifications than those typically
recommended to avoid adverse effects on the species (which already
consider the species' habitat). Best management practices or project
modifications associated with the section 7 consultation process to
prevent adverse effects to the species are also likely to directly
prevent adverse modification or destruction of critical habitat. And
because adverse modification and destruction of critical habitat are
evaluated at the scale of the entire designation, projects taking place
in a single critical habitat unit for rusty patched bumble bee are
unlikely to trigger adverse modification or destruction of critical
habitat from a single project. We recognize the proactive pollinator
conservation that owners and operators of electric generation and
transmission projects employ, and those activities will be considered
during consultations for the species and its critical habitat. Thus, it
is unlikely that the critical habitat designation would result in
additional project modifications or barriers for development projects
or for existing infrastructure and facility management above and beyond
what would already be recommended due to the listed status of the
species.
(16) Comment: The EWAC commented that the Service should reconsider
its approach to analyzing the economic impacts associated with
designating critical habitat, stating that the Service only considers
administrative costs to the agency of undertaking an adverse
modification analysis in the context of section 7 consultations. The
comment states that this approach ignores the actual costs of
requirements for mitigation and project delays, particularly where
designated critical habitat extends beyond habitat that is presently
occupied by a species. The comment describes that, absent critical
habitat, if a project proponent conducts presence/absence surveys that
demonstrate absence of relevant species, formal section 7 consultation
may not be required if the project proponent or federal action agency
concludes that the action is not likely to affect the listed species.
The commenter then states that if that same area is designated as
critical habitat, consultation may be required if the action may affect
critical habitat, even absent the presence of the listed species.
Our Response: The scope of the economic screening analysis is not
limited to the administrative costs to the agency of conducting an
adverse modification analysis as part of section 7 consultations.
Consistent with 50 CFR 424.12, the economic screening analyses consider
the ``probable'' incremental economic impacts of designating critical
habitat. This includes considering potential for the rule to result in
administrative costs (to the U.S. Fish and Wildlife Service, to Federal
action agencies, and to third parties to consultation), costs of
implementing project modifications resulting from section 7
consultation, and other costs potentially triggered by the rule even
outside of section 7 consultation (e.g., potential for additional state
or local regulatory requirements, project delays, or perceptional
effects on land values).
Section 7 consultation is required for projects or activities with
a Federal nexus that ``may affect'' the species or its critical
habitat. For critical habitat area that is not occupied by the species
[[Page 32523]]
(i.e., ``unoccupied critical habitat''), the presence of critical
habitat triggers the need for section 7 consultation. For example, the
project or activity may not affect the species (because it is not
present) but may affect the critical habitat. Accordingly, designation
of unoccupied critical habitat may have a higher likelihood of
generating additional costs of consultation (both administrative and
project modification costs). However, we are not designating any
unoccupied critical habitat for the rusty patched bumble bee. For the
rusty patched bumble bee, where we determined that additional project
modifications are a probable outcome of critical habitat designation,
the economic screening analysis considered the associated costs.
EWAC provided baseline costs associated with the listing of the
rusty patched bumble bee, which were incorporated into the economics
analysis. However, they did not provide information to support their
comment that designating critical habitat would increase the cost of
consultation above that of associated administrative costs. In the case
of the rusty patched bumble bee, all designated critical habitat is
currently occupied by the species. Projects and activities with a
Federal nexus in these areas are subject to section 7 consultation and
associated project modification recommendations regardless of whether
critical habitat is designated. The Service determined that critical
habitat is unlikely to change the conservation recommendations made as
part of these consultations. Thus, the analysis finds that costs of
additional project modifications are not a probable outcome of the
critical habitat rule.
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. 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(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 action 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 listed 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. While these alternatives must be technologically and
economically feasible, we acknowledge that their consideration may have
incremental impacts on the timelines and cost of projects implemented
within the critical habitat designation.
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, and 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.
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
[[Page 32524]]
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.
A critical habitat designation does not signal that habitat outside
the designated area is unimportant. 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 section 9 of the Act. These
protections and conservation tools will continue to contribute to
recovery of this 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 these 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
Overwintering
Little is known about the overwintering habitats of rusty patched
bumble bee queens, but based primarily on observations of other
species, we assume that rusty patched bumble bee queens overwinter in
upland closed-canopy forest. Forests are ecosystems where trees are the
dominant life form. Forest interiors are large blocks of unfragmented
forest with continuous canopy that shows no detectable edge influences
(Harper et al. 2005, p. 771) and forest edge is the interface between
forested and non-forested habitats that extends approximately 82-98 ft
(25-30 m) into the forest (Harper et al. 2005, pp. 771, 774). Most
overwintering Bombus queens reported in the literature in North America
were underground, and most were in shaded areas near trees and in banks
without dense vegetation (Liczner and Colla 2019, p. 787). The only
documented overwintering rusty patched bumble bee queen, discovered in
a hemlock grove within a larger maple oak-forest (about 0.3 mile (mi)
(0.5 kilometer (km)) into the forest) in Wisconsin in 2016, was found
on a level area near the bottom of a north-facing slope under a few
centimeters of leaf litter and loose soil (Herrick, University of
Wisconsin-Madison Landscape Arboretum, 2016 and 2024, pers. comm.).
Other species of the Bombus genus typically form a chamber in loose
(uncompacted), soft soil, a few centimeters deep in bare earth, in
moss, under tree litter, or in bare patches within short grass, and
they may avoid areas with dense vegetation (Alford 1969, p. 156;
Liczner and Colla 2019, p. 792). Overwintering habitat preferences may
be species-specific and dependent on factors such as slope orientation
and timing of emergence. For example, Bombus queens have been found in
well-drained soil that was shaded from direct sunlight in banks or
under trees and was free from living ground vegetation (Alford 1969,
pp. 150-152). For underground sites, soil type is often described as
sandy and well-drained (Alford 1969, p. 169), which suggests that
maintaining a consistently low moisture level is important (Sladen
1912, pp. 94-101). Because soil temperature influences diapause
duration and emergence (Alford 1969, pp. 161-168; Beekman et al. 1998,
p. 207), it has been hypothesized that the apparent preference for
north-facing slopes and shaded areas is to prevent the overwintering
queens from emerging too early on relatively warm days in the winter or
early spring (Alford 1969, pp. 149-169), and more generally, it could
suggest selection of sites that buffer hibernating bees from both
temperature and moisture fluctuations (Williams et al. 2019, pp. 1-3).
Based on these studies, we assume rusty patched bumble bees are
overwintering in any contiguous forest patch (i.e., forested areas with
native plants that provide springtime pollen and nectar, with leaf
litter or duff for burrowing, with uncompacted, well drained soils and
not dominated by invasive understory plant species, like common
buckthorn) that contains forest greater than 82-98ft (25-30m) from a
non-forested edge.
Nesting
Rusty patched bumble bee nests are typically 1 to 4 ft (0.3 to 1.2
m) underground in abandoned rodent nests, other mammal burrows, or
other
[[Page 32525]]
underground cavities with ample cover, and occasionally at the soil
surface or in aboveground structures (Plath 1922 pp. 190-191;
Macfarlane 1974, p. 5; Macfarlane 1994, pp. 5-6). Among the rusty
patched bumble bee nests studied in Ontario, 95 percent were
underground (Macfarlane 1974, p. 6; Macfarlane 1994, p. 5). More recent
rusty patched bumble bee nest observations were associated with rodent
burrows (Boone et al. 2022; Smith et al. 2025, p. 10), as were recently
discovered nests of a closely related species, the western bumble bee
(B. occidentalis) (Everett et al. in process, entire), which is in the
same subgenus as rusty patched bumble bee. Three western bumble bee
nests excavated in 2022 and 2023 in central Oregon were located in
abandoned rodent burrows with soils classified as loamy sand, with an
average of 84 percent sand particles (Everett et al. in process,
entire). The transition zone between forest and grassland, as well as
field boundaries, meadow margins, and forest edges, can be particularly
valuable bumble bee nesting habitat due to the presence of abandoned
rodent nests and undisturbed habitat with diverse floral resources
(Hines and Hendrix 2005, p. 1483).
Foraging
Bumble bees are generalist foragers that collect nectar and pollen
from a wide diversity of plants (Xerces 2013, pp. 27-28). The rusty
patched bumble bee is one of the first bumble bee species to emerge
early in the spring and last to go into diapause (hibernation) in the
fall. To meet its nutritional needs, the species requires a constant
and diverse supply of flowers that bloom throughout the colony's flight
period from spring through the fall (MacFarlane et al. 1994, p. 5). The
nectar from flowers provides carbohydrates and the pollen provides
protein, fatty acids, and micronutrients for the species (Di Pasquale
et al. 2013, p. 4; Lau et al. 2022, pp. 6-8). The number of new queens
that a colony can produce is directly related to the amount of pollen
that is available (Burns 2004, p. 150).
Based on other Bombus species, which typically exhibit foraging
distances of less than 0.6 mi (1 km) from their nesting sites (Knight
et al. 2005, p. 1816; Wolf and Moritz 2008, p. 422; Dramstad 1996, pp.
163-182; Osborne et al. 1999, pp. 524-526; Rao and Strange 2012, pp.
909-911), the rusty patched bumble bee may need floral resources in
close proximity to its nest, although studies have not confirmed this
to date. The rusty patched bumble bee may also be dependent on forest
spring ephemeral flowers because of the species' early emergence in the
spring and its association with forests and near forested habitats
(Colla and Dumesh 2010, pp. 45-46, 48).
Readily available access to high-quality foraging habitats near
nests allows other bumble bee species' workers to maintain short
foraging distances (Crowther et al. 2019). In Wisconsin, detection
probabilities of all bumble bee species, including rusty patched bumble
bees, increased with floral abundance (Nunes et al. 2024, p. 221).
Furthermore, colonies with low floral abundance around their nests may
produce few workers, and males may fail to produce any new queens
(Pelletier and McNeil 2003, pp. 691-692; Burns 2004, pp. 149, 155-156;
Samuelson et al. 2018, pp. 57; Timberlake et al. 2021, p. 1013).
Workers of other bumble bee species can forage 0.6 mi (1 km) or more
from nests but may predominantly forage within a few hundred meters
(Dramstad 1996, pp. 170-175; Osborne et al. 1999, pp. 524-526, 529;
Wolf and Moritz 2008, p. 422; Rao and Strange 2012, p. 911). A paucity
of spring floral resources contributed to high pathogen loads in one
bumble bee species studied in Pennsylvania and may exacerbate the
threat posed by disease transmission from honeybee apiaries (McNeil et
al. 2020, p. 3).
The availability of floral resources is dependent on the proper
soil and precipitation conditions to sustain them. Extended periods of
drought, for instance, may lessen the availability and diversity of
flowering plants in a given area because plant phenology is primarily
driven by temperature, precipitation, and the timing of snowmelt in the
spring (Inouye and Wielgolaski 2003, p. 207; Wielgolaski and Inouye
2003, pp. 179-181; Pyke et al. 2016, p. 12).
Dispersal Habitat
Based on studies of closely related species, the buff-tailed
bumblebee (Bombus terrestris) (Kraus et al. 2009, p. 249; Lepais et al.
2010, pp. 826-827) and the yellow-faced bumble bee (B. vosnesenskii)
(Jha and Kremen 2013, p. 2492), the maximum dispersal distance of rusty
patched bumble bee males and new queens is estimated to be up to 10 km
(6.2 mi) to find mates in the autumn. Floral resource availability
within dispersal areas is important for fueling flight, particularly
for males and gynes (female bumble bees that will become queens).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the rusty patched bumble bee from studies of the
species' habitat, ecology, and life history as described above.
Additional information can be found in the SSA report (Service 2016,
entire; available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-
R3-ES-2015-0112-0245). We have determined that the following physical
or biological features are essential to the conservation of the rusty
patched bumble bee:
(1) For overwintering, contiguous upland forest habitat, at least
82 feet (25 meters (m)) from a non-forested edge, with plants that
provide spring pollen and nectar for spring queen foraging immediately
after emergence from diapause, containing leaf litter or duff for
burrowing, and without dense invasive plant understory vegetation.
(2) For nesting, upland grasslands, shrublands, savannas, and the
forest edge interface between forested and non-forested natural
habitats that extends approximately 30 meters into the forest.
(3) For nesting, abandoned rodent burrows, other mammal burrows,
existing cavities with ample cover, or similar existing cavities at the
soil surface or below to 4 feet underground.
(4) For nesting and overwintering, well-drained, uncompacted, loose
soils sheltered from the elements.
(5) For foraging, diverse, abundant, native floral resources for
the entire active flight season.
Special Management Considerations or Protection
When designating critical habitat, we assess whether there are
specific areas within the geographical area occupied by the species at
the time of listing containing physical or biological features which
(1) are essential to the conservation of the species, and (2) 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 stressors that are
anticipated to degrade the physical or biological features, including,
but not limited to, ground disturbance or compaction activities (e.g.,
road and rail construction), habitat management (e.g., prescribed
burns, herbicide use), forestry activities (e.g., timber harvest),
actions that cause an increase in the extent or duration of surface
flooding or soil saturation (e.g., water
[[Page 32526]]
impoundments, alteration or interruption of existing drainage patterns,
surface runoff alterations), actions that increase competition for
floral resources (e.g., use of managed bees), and pesticide
applications. Sources of these stressors include, but are not limited
to, agricultural, municipal, and residential land uses. The physical or
biological features for the rusty patched bumble bee may require
special management considerations or protection to address these
threats.
Management activities that could ameliorate these threats include,
but are not limited to: management techniques to enhance floral
resources or reduce invasive plants or both, such as planting or
seeding to increase the abundance and diversity of native wildflowers
(although we acknowledge that non-native floral resources play a role
in the rusty patched bumble bee diet), removing and controlling
invasive plants, using prescribed fire, and mowing; use of best
management practices for managed bees to reduce or eliminate
competition for resources; and use of forestry best management
practices to enhance early spring foraging resources (e.g., spring
ephemerals, native flowering trees) and to reduce ground disturbance in
forested areas during the overwintering season.
These management activities would protect the physical or
biological features for the species by maintaining and increasing
nectar and pollen resources, maintaining or increasing the availability
of suitable nesting habitat and potential nesting sites (e.g., rodent
burrows), and maintaining or increasing the availability of suitable
overwintering habitat for the species.
Criteria Used To Identify Critical Habitat
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. We are not designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that meet the definition of
critical habitat. There are no unoccupied areas that are essential for
the conservation of the rusty patched bumble bee. We identified no
unoccupied areas that are free from potential interactions with managed
bees or large-scale agricultural lands and contain the physical or
biological features essential to the conservation of the species. There
are no other areas that meet the definition of critical habitat.
Because there are no bees in unoccupied areas, no unoccupied areas
support genetically distinct populations of rusty patched bumble bee
that are important for the conservation of the species or support the
healthiest remaining populations that are still on the landscape. There
are many unoccupied areas that may contain suitable habitat for the
rusty patched bumble bee; however, we did not identify any specific
unoccupied areas that are essential for the conservation of the
species. Rusty patched bumble bee range is not restricted by a lack of
habitat in its historical range. There are large areas of available
suitable habitat where the rusty patched bumble bee no longer occurs;
these areas can be considered in our recovery efforts with or without a
critical habitat designation.
Sources of data for the rusty patched bumble bee and its habitat
needs include research published in peer-reviewed articles on the
species and related species, agency reports, communication with species
experts, the 2021 rusty patched bumble bee recovery plan (Service 2021,
entire), data submitted from 10(a)(1)(A) scientific recovery permit
holders and public participation websites (e.g., <a href="https://www.inaturalist.org/">https://www.inaturalist.org/</a>), and the Service's published ``High Potential
Zones'' (HPZ) and potential dispersal area data for rusty patched
bumble bee (available from ArcGIS online at <a href="https://www.arcgis.com/home/item.html?id=15b68d967aab4737981d172e8e25f78f">https://www.arcgis.com/home/item.html?id=15b68d967aab4737981d172e8e25f78f</a>, accessed June 9,
2024).
After identifying areas that contain the physical or biological
features essential to the conservation of the species, we then
identified overlapping areas that likely have multiple colonies
interacting with each other. A minimum of 50 verified rusty patched
bumble bee observations since 2007 within estimated foraging and
dispersal distances of one another likely represents multiple,
interacting colonies existing over time, rather than single
observations of a single individual (most observations are of female
workers; however, some observations are males or queens). Clustered,
interacting colonies foster gene flow among them, thereby helping to
facilitate genetic health. Maintaining gene flow among colonies is
especially important in species like the rusty patched bumble bee
because of genetic characteristics that can produce inviable or sterile
males (that is, single locus complementary sex determination), which
may lead to rapid extirpation, especially as colonies become small and
isolated (Zayed and Packer 2005, p. 10744; Zayed 2009, entire).
We used the HPZ model developed at the time of listing to determine
areas with the highest potential for the species to be present and for
which observation points were within likely foraging or dispersal
distances from each other. This model uses ArcGIS software that
considers the likelihood of rusty patched bumble bee movement based on
the National Land Cover Database (NLCD; <a href="https://www.usgs.gov/centers/eros/science/national-land-cover-database">https://www.usgs.gov/centers/eros/science/national-land-cover-database</a>). This model assesses the
likelihood of rusty patched bumble bee distribution from the locations
of known records based on the manner in which various land cover types
may affect bumble bee movement and behavior. Land cover types are
grouped as having strong, moderate, weak, or no limits on the species'
movement based on the best available information for this species or
similar bumble bee species. This methodology was based on a similar
model created to examine movement of the yellow-faced bumble bee
(Bombus vosnesenskii) (Jha and Kremen 2013, entire). The polygons
generated from the HPZ model suggest areas with the highest potential
for the species to be present, based on typical bumble bee foraging
distances, estimated dispersal distances, and the ability of bumble
bees to move through various land cover types, but the model does not
attempt to identify or quantify suitable habitat for the species (for
more details, see <a href="https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee">https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee</a>).
After identifying areas that likely have multiple interacting
colonies and are within a contiguous HPZ, we then identified areas that
are genetically distinct. Analyses of rangewide genetic data collected
from extant records show that rusty patched bumble bees in the
Appalachian region of West Virginia and Virginia represent a
genetically distinct population cluster with substantial
differentiation from the rest of the extant range (Mola et al. 2024, p.
8).
Finally, we included areas buffered from the impacts of large-scale
agricultural use of pesticides and managed bees. Prior to its listing
as endangered in 2017, the species experienced a widespread and steep
decline. The exact cause of the decline
[[Page 32527]]
is unknown, but evidence suggests a synergistic interaction between an
introduced pathogen and exposure to pesticides (specifically,
insecticides and fungicides; Service 2016, p. 53). Pathogens can be
introduced to rusty patched bumble bees through managed bees.
Generally, the term ``managed bees'' is defined as hives or colonies of
bees that are used commercially to provide pollination services for a
wide variety of crops over the growing season, with some hives or
colonies moved within and among States multiple times throughout any
one growing season. We, therefore, include only areas that are at least
0.6 mi (1 km) away from large-scale and intensive agricultural areas
that rely on pesticides, or use a variety of managed bees for
pollination, or both. This distance is used to buffer areas from the
potential impacts of managed bees and pesticides that may be used in
large-scale agriculture.
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:
(1) Areas within a contiguous high potential zone (HPZ) with 50 or
more positive observations since 2007.
(2) Areas that include any known genetically distinct populations.
(3) Areas that are at least 0.6 mi (1 km) away from large-scale
agriculture that use pesticides, managed bees, or both.
By applying this methodology, we delineated the areas that meet the
definition of critical habitat for the rusty patched bumble bee. The
Act's definition of ``critical habitat'' requires the Secretary to
identify areas based on the conservation needs of the species and
section 4(b)(2) expressly requires designations to be made based on the
best scientific data available. Having followed the biologically driven
first step of identifying ``critical habitat'' for a species, the
Secretary next turns to the remaining procedures set forth in section
4(b)(2), which allow for consideration of whether those areas
ultimately should be designated as critical habitat. Pursuant to the
first sentence of section 4(b)(2), the Secretary undertakes the
mandatory consideration of impacts on the economy and national
security, as well as any other impacts the Secretary determines
relevant. However, weighing analyses for exclusion under section
4(b)(2) of the Act are not conducted for areas not identified as
critical habitat.
This critical habitat overlaps a great deal of developed areas,
such as lands covered by buildings, pavement, and other structures.
These structures are not designated as critical habitat themselves
because such structures lack the physical or biological features
essential to the conservation of the rusty patched bumble bee. However,
the physical or biological features for rusty patched bumble are
interspersed throughout the developed lands at such a scale that they
cannot be mapped. 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 structures. Any such structures left
inside critical habitat boundaries shown on the maps of this rule have
been excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving such structures (and not
affecting the designated critical habitat) will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action will affect the
physical or biological features in the surrounding critical habitat.
The 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 Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2024-0132 and on
our internet site <a href="https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis">https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis</a>.
Final Critical Habitat Designation
We are designating 14 units as critical habitat for the rusty
patched bumble bee. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for rusty patched bumble bee. The 14
areas we designate as critical habitat are: (1) Minneapolis-St. Paul
Metropolitan; (2) Northfield; (3) Rochester; (4) Winona; (5) Denzer;
(6) Bunker Hill; (7) Madison; (8) Milwaukee; (9) Rockford; (10)
McHenry; (11) Elgin; (12) Lost Nation; (13) Iowa City; and (14) Back
Creek Mountain. Table 1 shows the critical habitat units and the
approximate area of each unit.
BILLING CODE 4333-15-P
[[Page 32528]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.000
[[Page 32529]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.001
BILLING CODE 4333-15-C
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for rusty patched bumble bee,
below. All units are occupied and contain all of the essential physical
or biological features.
Unit 1: Minneapolis-St. Paul Metropolitan
Unit 1 consists of 520,854 ac (210,782 ha) in the Minneapolis-St.
Paul metropolitan area of Minnesota in Ramsey, Scott, Dakota, Pierce,
Washington, Carver, Hennepin, and St. Croix Counties. This unit
consists of private lands (462,540 ac (187,183 ha)), Minnesota State
and local government-owned lands (49,891 ac (20,190 ha)), Tribal lands
(3,086 ac (1,249)), and Federal lands (5,337 ac (2,160 ha)). The
Federal lands include the National Park Service's Mississippi National
River and Recreational Area and Lower St. Croix National Scenic
Riverway, and the Service's Minnesota Valley National Wildlife Refuge.
Approximately 212 ac (86 ha) of privately owned lands are managed by
the U.S. Department of Agriculture's Natural Resources Conservation
Service (USDA-NRCS) Wetlands Reserve Program. Tribal lands include
Shakopee Mdewakanton Sioux Community and Shakopee Mdewakanton Sioux
Community Off-Reservation Land Trust.
In the proposed rule, this unit comprised 567,805 ac (229,782 ha),
an area which included lands covered by the monarch CCAA. We have
excluded from the final designation the portion covered by the monarch
CCAA, approximately 40,226 ac (16,279 ha) (see Consideration of Impacts
Under Section 4(b)(2) of the Act, below). We also removed an additional
6,725 ac (2,722 ha) from this unit, resulting from the correction of an
error (see Summary of Changes From the Proposed Rule). This unit also
exempts approximately 47 ac (19 ha) of the Ft. Snelling ARC. Their
INRMP was updated to include the rusty patched bumble bee between the
proposed and final designation of critical habitat (see the Exemptions
section below).
Special management considerations or protection may be required
within
[[Page 32530]]
Unit 1 to alleviate impacts from stressors that are anticipated to
degrade the physical or biological features, including, but not limited
to, ground disturbance or compaction activities (e.g., road and rail
construction), habitat management (e.g., prescribed burns, herbicide
use), forestry activities (e.g., timber harvest), actions that cause an
increase in the extent or duration of surface flooding or soil
saturation (e.g., water impoundments, alteration or interruption of
existing drainage patterns, surface runoff alterations), and pesticide
applications.
Unit 2: Northfield
Unit 2 consists of 12,038 ac (4,872 ha) in the Northfield,
Minnesota, metropolitan area in Dakota and Rice Counties. This unit
consists of private lands (11,542 ac (4,671 ha)), and Minnesota State
and local government-owned lands (496 ac (201 ha)). There are no
Federal or Tribal lands identified in this unit.
In the proposed rule, this unit comprised 12,557 ac (5,082 ha), an
area which included lands covered by the monarch CCAA. We have excluded
from this unit the portion covered by the monarch CCAA, approximately
518 ac (210 ha) (see Consideration of Impacts Under Section 4(b)(2) of
the Act, below).
Special management considerations or protection may be required
within Unit 2 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 3: Rochester
Unit 3 consists of 41,616 ac (16,841 ha) in the Rochester,
Minnesota, metropolitan area in Olmsted County. This unit consists of
private lands (40,727 ac (16,482 ha)), and Minnesota State and local
government-owned lands (889 ac (360 ha)). There are no Federal or
Tribal lands identified in this unit.
In the proposed rule, this unit comprised 43,091 ac (17,438 ha), an
area which included lands covered by the monarch CCAA. We have excluded
from this unit the portion covered by the monarch CCAA, approximately
1,094 ac (443 ha) (see Consideration of Impacts Under Section 4(b)(2)
of the Act, below). We also removed an additional 381 ac (154 ha) from
this final designation, resulting from the correction of an error (see
Summary of Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 3 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 4: Winona
Unit 4 consists of 28,309 ac (11,456 ha) in the Winona, Minnesota,
area in Winona County. This unit consists of private lands (27,905 ac
(11,293 ha)), and Minnesota State and local government-owned lands (404
ac (163 ha)). There are no Federal or Tribal lands identified in this
unit.
In the proposed rule, this unit comprised 29,823 ac (12,069 ha), an
area which included lands covered by the monarch CCAA. We have excluded
this unit the portion covered by the monarch CCAA, approximately 674 ac
(273 ha) (see Consideration of Impacts Under Section 4(b)(2) of the
Act, below). We also removed an additional 840 ac (340 ha) from this
final designation, resulting from the correction of an error (see
Summary of Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 4 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 5: Denzer
Unit 5 consists of 26,989 ac (10,922 ha) in Sauk County near
Denzer, Wisconsin. This unit consists of private lands (26,283 ac
(10,636 ha)), and Wisconsin State and local government-owned lands (706
ac (286 ha)). There are no Federal or Tribal lands identified in this
unit.
In the proposed rule, this unit comprised 27,009 ac (10,930 ha). We
removed an area of 20 ac (8 ha) from this unit, resulting from the
correction of an error (see Summary of Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 5 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 6: Bunker Hill
Unit 6 consists of 18,316 ac (7,412 ha) in Iowa County near Bunker
Hill, Wisconsin. This unit consists of private lands (13,558 ac (5,487
ha)) and Wisconsin State and local government-owned lands (4,758 ac
(1,925 ha)). There are no Federal or Tribal lands identified in this
unit.
In the proposed rule, this unit comprised 18,686 ac (7,562 ha), an
area which included lands covered by the monarch CCAA. We have excluded
from this unit the portion covered by the monarch CCAA, approximately
370 ac (150 ha) (see Consideration of Impacts Under Section 4(b)(2) of
the Act, below).
Special management considerations or protection may be required
within Unit 6 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 7: Madison
Unit 7 consists of 205,127 ac (83,011 ha) in Dane and Iowa Counties
near Madison, Wisconsin. This unit consists of private lands (198,107
ac (80,171 ha)), Wisconsin State and local government-
[[Page 32531]]
owned lands (6,712 ac (2,716 ha)), Tribal lands (4 ac (2 ha)), and
Federal lands (156 ac (63 ha)). The Federal lands include the U.S.
Forest Service's Forest Products Experimental Laboratory, National Park
Service's Ice Age National Scenic Trail, and the Service's Dane County
Waterfowl Production Area. Approximately 304 ac (123 ha) of private
lands in this unit are managed by the USDA-NRCS Wetlands Reserve
Program, and approximately 53 ac (21 ha) of private lands are managed
by the USDA-NRCS Emergency Waters Protection Program. The Tribal lands
are managed by the Ho-Chunk Nation.
In the proposed rule, this unit comprised 210,753 ac (85,289 ha),
an area which included lands covered by the monarch CCAA. We have
excluded from this unit the portion covered by the monarch CCAA,
approximately 5,598 ac (2,265 ha) (see Consideration of Impacts Under
Section 4(b)(2) of the Act, below). We also removed an additional 28 ac
(11 ha) from this unit, resulting from the correction of an error (see
Summary of Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 7 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 8: Milwaukee
Unit 8 consists of 238,928 ac (96,691 ha) in the Milwaukee,
Wisconsin, metropolitan area in Milwaukee, Ozaukee, Racine, Washington,
and Waukesha Counties. This unit consists of private lands (225,865 ac
(91,404 ha)), Wisconsin State and local government-owned lands (12,927
ac (5,231 ha)), and Tribal lands (10 ac (4 ha)), and Department of
Defense (126 ac (51 ha)) lands. Approximately 66 ac (27 ha) of private
lands in this unit are managed by the USDA-NRCS Wetlands Reserve
Program. Tribal lands are in the Forest County Potawatomi Off-
Reservation Land Trust.
In the proposed rule, this unit comprised 252,992 acres (102,382
ha), an area which included lands covered by the monarch CCAA. We have
excluded from this unit the portion covered by the monarch CCAA,
approximately 12,590 ac (5,095 ha) (see Consideration of Impacts Under
Section 4(b)(2) of the Act, below). We also removed an additional 1,474
ac (597 ha) from this unit, resulting from the correction of an error
(see Summary of Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 8 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 9: Rockford
Unit 9 consists of 130,668 ac (52,879 ha) in Boone, Ogle, and
Winnebago Counties near Rockford, Illinois. This unit consists of
private lands (128,064 ac (51,826 ha)), and Illinois State and local
government-owned lands (2,604 ac (1,054 ha)). There are no Federal or
Tribal lands identified in this unit. Approximately 669 ac (271 ha) of
private lands in this unit are managed by the USDA-NRCS Wetlands
Reserve Program.
In the proposed rule, this unit comprised 150,108 ac (60,747 ha),
an area which included lands covered by the monarch CCAA. We have
excluded from this unit the portion covered by the monarch CCAA,
approximately 10,414 ac (4,214 ha) (see Consideration of Impacts Under
Section 4(b)(2) of the Act, below). We also removed an additional 9,027
ac (3,653 ha) from this unit, resulting from the correction of an error
(see Summary of Changes From the Proposed Rule). This unit also exempts
approximately 2 ac (0.8 ha) of lands on the Machesney ARC. Their INRMP
was updated to include the rusty patched bumble bee between the
proposed and final designation of critical habitat (see the Exemptions
section below).
Special management considerations or protection may be required
within Unit 9 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 10: McHenry
Unit 10 consists of 65,464 ac (26,492 ha) near McHenry, Illinois,
in McHenry and Lake Counties, Illinois, and Kenosha County, Wisconsin.
This unit consists of private lands (58,601 ac (23,715 ha)), Illinois
state and local government-owned lands (6,861 ac (2777 ha)), and
Federal lands (2 ac (1 ha)). The Federal lands are owned by the Bureau
of Land Management. Thirty-nine ac (16 ha) of a conservation easement
within the Hackmatack National Wildlife Refuge, managed by the Service,
falls within this unit. Approximately 412 ac (167 ha) of private lands
within this unit are managed by the USDA-NRCS Wetlands Reserve Program.
There are no Tribal lands identified in this unit.
In the proposed rule, this unit comprised 68,295 ac (27,638 ha), an
area which included lands covered by the monarch CCAA. We have excluded
from this unit the portion covered by the monarch CCAA, approximately
2,827 ac (1,144 ha) (see Consideration of Impacts Under Section 4(b)(2)
of the Act, below). We also removed an additional 4 ac (2 ha) from this
unit, resulting from the correction of an error (see Summary of Changes
From the Proposed Rule).
Special management considerations or protection may be required
within Unit 10 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 11: Elgin
Unit 11 consists of 69,761 ac (28,231 ha) in Cook, Kane, Lake, and
McHenry Counties near Elgin, Illinois. This unit consists of private
lands (57,285 ac (23,182 ha)), and Illinois state and local government-
owned lands (12,494 ac (5,056 ha)). There are no Federal or Tribal
lands identified in this unit.
In the proposed rule, this unit comprised 75,080 ac (30,384 ha), an
area
[[Page 32532]]
which included lands covered by the monarch CCAA. We have excluded from
this unit the portion covered by the monarch CCAA, approximately 5,319
ac (2,153 ha) (see Consideration of Impacts Under Section 4(b)(2) of
the Act, below).
Special management considerations or protection may be required
within Unit 11 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 12: Lost Nation
Unit 12 consists of 12,643 ac (5,116 ha) in Lee and Ogle Counties
near Lost Nation, Illinois. This unit consists of private lands (12,046
ac (4,875 ha)), and Illinois State and local government-owned lands
(597 ac (242 ha)). There are no Federal or Tribal lands identified in
this unit.
In the proposed rule, this unit comprised 15,043 ac (6,088 ha), an
area which included lands covered by the monarch CCAA. We have excluded
from this unit the portion covered by the monarch CCAA, approximately
228 ac (92 ha) (see Consideration of Impacts Under Section 4(b)(2) of
the Act, below). We also removed an additional 2,172 ac (879 ha) from
this unit, resulting from the correction of an error (see Summary of
Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 12 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 13: Iowa City
Unit 13 consists of 45,631 ac (18,466 ha) in Johnson County near
Iowa City, Iowa. This unit consists of private lands (30,500 ac (12,343
ha)), Iowa State and local government-owned lands (3,922 ac (1,587
ha)), and Federal lands (11,209 ac (4,536 ha)). The Federal lands
include the U.S. Army Corps of Engineers' Coralville Lake and
Coralville Reservoir. A portion of the U.S. Army Corps of Engineers'
land is managed by the State of Iowa (1,333 ac (539 ha)) and the
University of Iowa (421 ac (170 ha)).
In the proposed rule, this unit comprised 45,902 ac (18,576 ha). We
removed an area of 271 ac (110 ha) from this unit, resulting from the
correction of an error (see Summary of Changes From the Proposed
Rule).Special management considerations or protection may be required
within Unit 13 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications.
Unit 14: Back Creek Mountain
Unit 14 consists of 118,589 ac (47,991 ha) near Back Creek Mountain
in Highland and Bath Counties, Virginia, and Greenbrier and Pocahontas
Counties, West Virginia. This unit consists of private lands (11,193 ac
(4,530 ha)), Virginia State lands (1,845 ac (747 ha)), and Federal
lands (105,551 ac (42,715 ha)). The Federal lands include the
Monongahela and George Washington-Jefferson National Forests.
In the proposed rule, this unit comprised 118,603 ac (47,997 ha).
We removed an area of 14 ac (6 ha) from this unit, resulting from the
correction of an error (see Summary of Changes From the Proposed Rule).
Special management considerations or protection may be required
within Unit 14 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications. Sources of these stressors include, but are not
limited to, forestry, recreational, municipal, and residential land
uses.
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.
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the conservation of a listed species. Such alterations may include,
but are not limited to, those that alter the physical or biological
features essential to the conservation of a species or that preclude or
significantly delay development of such features (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,
destroy or adversely modify critical habitat, or both, we provide
reasonable and prudent alternatives to the project, if any are
identifiable, that would avoid the likelihood of jeopardy 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
[[Page 32533]]
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 or by the
Service, 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
Bureau of Land Management 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 proposed or final
regulations include, to the maximum extent practicable, 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 rusty patched bumble bee include those that may affect
the physical or biological features of the rusty patched bumble bee's
critical habitat (see Physical or Biological Features Essential to the
Conservation of the Species, above).
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act
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
INRMP prepared under section 101 of the Sikes Act, if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for rusty patched bumble bee to determine
if they meet the criteria for exemption from critical habitat under
section 4(a)(3) of the Act. The following areas are DoD lands with
completed, Service-approved INRMPs within the critical habitat
designation.
Approved INRMPs
The 88th Readiness Division (RD) Integrated Natural Resources
Management Plan covers 125 sites in Illinois, Indiana, Iowa, Michigan,
Minnesota, Missouri, Ohio and Wisconsin, and there is an emphasis on
habitat management, threatened and endangered species conservation, and
coordination with State and Federal agencies (88th Readiness Division
2024). The INRMP was updated in 2024 and incorporates the rusty patched
bumble in its revisions. There is an emphasis throughout the document
on invasive species management--primarily control and prevention of
invasive plants and noxious weeds--which in turn promotes native floral
communities. There is also an emphasis on using native vegetation
materials for erosion control and habitat restoration actions. These
best management practices (BMPs) will promote native floral communities
which benefit the rusty patched bumble bee.
In addition, the INRMP identifies management considerations for the
monarch butterfly, a species proposed for listing under the Act, as
well as for other listed invertebrates, including Poweshiek
skipperling. Needs for these species will be taken into consideration
for landscaping and habitat restoration plans on a site-by-site basis.
Management actions taken to protect and benefit these species, such as
promoting native floral resources and limiting the use of pesticides,
will similarly benefit rusty patched bumble bee.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act and evaluating the criteria under 50 CFR
424.12(h), we have determined that the identified lands are subject to
the 88th Readiness Division INRMP and that conservation efforts
identified in the INRMP will provide a benefit to the rusty patched
bumble bee.
The U.S. Army Reserve 88th RD INRMP includes two sites that
overlapped with the rusty patched bumble bee proposed critical habitat
designation in Illinois and Minnesota. The INRMP includes Machesney
Park Army ARC in Illinois, with 2 ac (1 ha) that overlapped Unit 9
(Rockford) of the proposed critical habitat designation and Fort
Snelling ARC in Minnesota, which overlapped with approximately 47 ac
(19 ha) in Unit 1 (Minneapolis-St. Paul Metropolitan). Both sites are
exempted from the final critical habitat designation. Additionally,
other sites were discussed in the proposed critical habitat designation
that no longer
[[Page 32534]]
overlap with this final designation due to the changes to unit
boundaries previously discussed. All areas that are included in the
88th RD INRMP are exempted from the final critical habitat designation.
Machesney Park Army Reserve Center, Machesney Park, IL; Unit 9
(Rockford); 2 ac (1 ha)
This ARC consists of one building complex, secured military
equipment parking, privately owned vehicle parking, an entrance
driveway, sidewalks, one solar panel, manicured and maintained turf
grass areas, and one constructed drainage swale feature. The project
area is bounded by commercial development to the north, Steele Drive to
the south, commercial development and Burden Road to the east, and
fallow land to the west. The site is used for classroom training,
general administrative services, and light vehicle maintenance. The
88th RD owns the land and buildings that comprise the site. The
footprint of the ARC is approximately 15 acres (ac; 6 hectares (ha)) of
which only 2 ac (1 ha) overlap with Unit 9. All areas within the
Machesney Park ARC that were included in the proposed critical habitat
designation are exempted from the final critical habitat designation.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the 88th RD INRMP and that conservation efforts
identified in the INRMP will provide a benefit to the rusty patched
bumble bee. Therefore, lands within this installation are exempt from
critical habitat designation under section 4(a)(3) of the Act. We are
not including approximately 2 ac (1 ha) of habitat in this final
critical habitat designation because of this exemption.
Fort Snelling Army Reserve Center, Fort Snelling, MN; Unit 1
(Minneapolis-St. Paul Metropolitan); 47 ac (19 ha)
The Fort Snelling ARC consists of three administration buildings,
three Area Maintenance Support Activity/Organizational Maintenance Shop
buildings, a gate guard building, and associated parking areas.
Surrounding land use includes Highway 62 to the north, Minneapolis St.
Paul International Airport and the Minnesota Air National Guard 133rd
to the south, parking and a federal building to the east, and U.S. Air
Force Reserve 934th to the west. The site uses include administrative
services, classroom training, light and heavy vehicle maintenance, and
military equipment storage. The 88th RD owns all seven buildings and
the land. The entire footprint of Fort Snelling ARC falls within the
boundaries of Unit 1.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the 88th RD INRMP and that conservation efforts
identified in the INRMP will provide a benefit to the rusty patched
bumble bee. Therefore, lands within this installation are exempt from
critical habitat designation under section 4(a)(3) of the Act. We are
not including approximately 47 ac (19 ha) of habitat in this final
critical habitat designation because of this exemption.
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, the impact on national security, 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). We explain each decision to
exclude areas, as well as decisions not to exclude, to demonstrate that
the decision is reasonable.
When evaluating the exclusion of 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 this final rule, 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 undertook
for deciding whether to exclude any areas--taking into consideration
each category of impacts and our analysis of the relevant impacts.
Exclusions Based on 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. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
to be our economic analysis of the critical habitat designation and
related factors (IEc 2025, entire). The analysis, dated July 12, 2024,
was made available for public review and comment from November 26,
2024, through January 27, 2025 (89 FR 93245). The economic analysis
addressed probable economic impacts of critical habitat designation for
the rusty patched bumble bee. Following the close of the comment
period, we reviewed and evaluated all information submitted during the
comment period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the rusty patched bumble
bee is summarized below and available in the updated screening analysis
for the rusty patched bumble bee, dated May 6, 2025 (IEc 2025, entire),
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at docket number FWS-R3-ES-
2024-0132. The updated screening analysis memorandum includes only
updates to reflect changes in guidance for regulatory impact analysis
from the administration (specifically, reverting to the 2003 version of
Circular A-4 and the $100 million threshold for an economically
significant rulemaking) and the addition of an administrative cost
model appendix. Public comments submitted related to the economics
analysis are addressed in the Public Comments section above.
The full description of the findings from the economic analysis are
outlined in the proposed rule (89 FR 93245; November 26, 2024). The
estimated incremental cost of the total proposed critical habitat
designation for rusty
[[Page 32535]]
patched bumble bee was found to be less than $390,000 per year.
Therefore, with the removal of 100,795 ac (40,790 ha) of critical
habitat from this final critical habitat designation to exclusion of
areas covered by the monarch CCAA, exemptions of military lands with an
INRMP including the rusty patched bumble bee, and lands erroneously
included in the proposed rule, the annual administrative burden is very
unlikely to reach $100 million, which is the threshold for a
significant regulatory action under Executive Order (E.O.) 12866.
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising their
discretion to exclude any areas from this designation of critical
habitat for the rusty patched bumble bee based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
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), we must still consider
impacts on national security, including homeland security, of
designating those lands or areas as critical habitat in accordance with
section 4(b)(2). 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.
We consulted with DoD on this designation. No potential national-
security impact was identified, nor request for an exclusion from
critical habitat based on potential national-security impacts was
received. Consequently, the Secretary is not exercising their
discretion to exclude any areas from this designation based on impacts
on national security.
Exclusions Based on 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 as 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), ``conservation benefit agreements'' or
``conservation agreements'' (CBAs) (CBAs are a new type of agreement
replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April
12, 2024)) or habitat conservation plans (HCPs)--or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged 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.
No Tribes expressed concern with being included in this critical
habitat designation and we did not receive any requests for exclusion
during our coordination efforts or during the public comment period. We
also consider any State, local, social, or other impacts that might
occur because of the designation.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that 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 rusty patched bumble bee,
the benefits of critical habitat include public awareness of the
presence of rusty patched bumble bee and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for rusty patched bumble bee due to protection from
destruction or adverse modification of critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. Additionally, continued implementation
of an ongoing management plan that provides equal to or more
conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
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.
Based on the information provided by entities seeking exclusion, as
well as additional public comments we received, and the best scientific
data available, we evaluated whether certain lands in the critical
habitat are appropriate for exclusion from the final designation under
section 4(b)(2) of the Act. If our analysis indicates that the benefits
of excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise their discretion to exclude the lands from the final
designation. In the paragraphs below, we provide our analysis of the
areas being excluded under section 4(b)(2) of the Act.
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 4(b)(2) analysis, we consider
whether there are approved and permitted conservation agreements or
plans covering the species in the area such 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
[[Page 32536]]
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 species. The CBA replaces two previous types of voluntary
agreements (SHAs and CCAAs) going forward for new agreements after
April 2024. However, permitted SHAs and CCAAs or those we gave notice
of in a Federal Register publication prior to April 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 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 (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 (see 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 CCAA/SHA/HCPs
described below:
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.
Nationwide Candidate Conservation Agreement for Monarch Butterfly on
Energy and Transportations Lands
The Nationwide Candidate Conservation Agreement with Assurances for
the Monarch Butterfly on Energy and Transportation Lands monarch CCAA
with an integrated Candidate Conservation (Agreement) represents a
unique collaboration between the University of Illinois at Chicago
(permit holder), the U.S. Fish and Wildlife Service, and more than 83
interested entities from the energy and transportation sectors. Since
the signing of the Agreement in 2020, it has been properly implemented
with 6,883,308 ac (2,785,600 ha) enrolled and of these acres, 79,859 ac
(32,318 ha) occur in 11 critical habitat units (see Table 2 below). We
expect proper implementation to continue into the future based on the
permittee's record and the submitted applications that are being
processed. The Agreement is in place until 2045, unless terminated or
revoked before that time. The interested entities represent companies
and organizations managing lands associated with electric power
generation, electric transmission and distribution, oil and gas
transmission and distribution, and renewable energy development, as
well as a network of individual state departments of transportation,
with support from the Federal Highway Administration, who were involved
in the conceptualization and preparation of this Agreement. As of
August 2025, there are 64 entities with signed certificates of
inclusion in the Agreement.
This Agreement includes adaptive management principles to
incorporate new information and research as it becomes available. The
Agreement also incorporates processes to address changed circumstances
over the duration of the Agreement. Using adaptive management
principles, and with the consent of the permit holder and us, this
Agreement may be amended to address emerging and changing conservation
needs. This programmatic Agreement includes:
<bullet> A general description of responsibilities of all involved
participating agencies and Partners, and the area covered under the
programmatic Agreement;
<bullet> Background and general threats to monarchs, the goals of
this Agreement, and the conservation measures needed to reduce or
potentially remove those identified threats in line with that goal;
<bullet> Expected benefits of prescribed actions in relation to the
five threat factors the Service is required to evaluate when
considering whether or not to list a species; and
<bullet> A description of assurances where applicable, monitoring,
annual reporting, and discussion on level of impact (or take, if
listed) that is likely to occur from activities on enrolled lands.
This Agreement encourages involvement in voluntary conservation,
which has potential to support the creation of a widespread network of
lands managed to benefit monarch habitat across the nation. The
Agreement covers lands within the monarch butterfly's range across the
lower 48 States. In doing so, the infrastructure needed for energy and
transportation can voluntarily help achieve biological conservation
goals for the monarch and play an important role in long-term
conservation on these working lands.
Although the monarch CCAA was not developed specifically for the
rusty patched bumble bee, many of the goals and objectives of the plan
will also benefit the rusty patched bumble bee and its habitat. A
stated objective of the monarch CCAA is to ``Enhance and expand
available monarch habitat by adopting appropriate conservation measures
that promote sustainable breeding (milkweed) and foraging (nectar
plants) habitat.'' This objective specifically is beneficial to all
five physical or biological features essential to the conservation of
the rusty patched bumble bee. The five physical or biological features
essential to the conservation of the species are derived from the needs
of the rusty patched bumble bee and are habitat-based. For example, an
important component of rusty patched bumble bee foraging habitat is
diverse, abundant, native floral resources. Maintaining and creating
habitat that is beneficial for the
[[Page 32537]]
monarch butterfly is generally also beneficial to the rusty patched
bumble bee and its habitat, as these activities will create or protect
foraging habitat that is suitable for both monarch and rusty patched
bumble bee. Activities identified in the Agreement that maintain and
create habitat include targeted herbicide treatments, conservation
mowing, brush removal, restricted pesticide use, and promotion of
native floral resources (including milkweed). Although it is not a
stated objective, the monarch CCAA will manage and protect habitat for
the benefit of the physical or biological features of the rusty patched
bumble bee. For more specific information on the monarch CCAA, visit
<a href="https://www.fws.gov/media/nationwide-candidate-conservation-agreement-monarch-butterfly">https://www.fws.gov/media/nationwide-candidate-conservation-agreement-monarch-butterfly</a>.
Benefits of Inclusion--Monarch CCAA Lands
The benefits of including lands in critical habitat can be
regulatory, educational, or to aid in recovery of species as generally
discussed in Consideration of Impacts Under Section 4(b)(2) of the Act
above. The following is our assessment of the benefits for inclusion of
the portions of the critical habitat for the rusty patched bumble bee
that are covered by the monarch CCAA. This agreement has contributed to
the development of a formal partnership between the dozens of partners
and the U.S. Fish and Wildlife Service since 2020
The designation of critical habitat can help to educate the public
regarding the potential conservation value of an area and can focus
efforts by clearly delineating areas of high conservation value for the
rusty patched bumble bee. The rusty patched bumble bee has been listed
as an endangered species throughout all its range since 2017;
conservation actions benefitting the rusty patched bumble bee have been
implemented since the time of listing. These actions include
restoration and protection of habitat, efforts to address threats to
the species, as well as outreach and education. Little additional
educational benefit would be gained from designation of critical
habitat on the monarch CCAA lands as a result of informing the public
of the presence of the rusty patched bumble bee, especially since these
areas are within the historical range and surrounded by areas
designated as critical habitat. Therefore, we find that the benefits of
inclusion of areas in the monarch CCAA are reduced as a result of past
and ongoing actions.
The designation of critical habitat can aid in recovery of the
species by raising awareness of landowners and managers by calling
attention to recovery actions that could be implemented. In the case of
the rusty patched bumble bee, habitat-based threats to the physical or
biological features are already being addressed in many cases
throughout the species' range by the endangered listing determination
and ongoing section 7 consultations since listing in 2017. There is a
substantial consultation history for the rusty patched bumble bee
throughout the range since the time of the final listing determination,
as well as outreach and education specific to rusty patched bumble bee.
The conservation actions implemented for rusty patched bumble bee since
2017 are complementary to, not exclusive of, the conservation benefits
from excluding lands enrolled in the monarch CCAA. Therefore, the
overall benefit from raising awareness of landowners and managers to
the recovery of the species from critical habitat in the areas covered
by the monarch CCAA is reduced.
The principal benefit of any designated critical habitat is that
activities in and affecting such habitat require consultation under
section 7 of the Act. Such consultation would ensure that protection is
provided to avoid destruction or adverse modification of critical
habitat. However, we conclude that few regulatory benefits to the rusty
patched bumble bee would be gained from a designation of critical
habitat on areas covered by the monarch CCAA. Through the consultation
process for specific projects, we would determine if there were any
anticipated effects to listed species or potential destruction or
adverse modification of critical habitat. We have been conducting
section 7 consultations for the rusty patched bumble bee since its
listing in 2017 (and will continue to regardless of a critical habitat
designation) and have not found that any projects have risen to the
level of a jeopardy finding. Projects that take place within the areas
excluded from the final designation of critical habitat because of the
monarch CCAA would still need to be consulted on, though they would not
need to have an adverse modification analysis conducted under section 7
of the Act.
In our evaluation of the probable economic impact of a critical
habitat designation, we identified the effects expected to occur solely
due to the designation of critical habitat and not from the protections
that are in place due to the species being listed under the Act. Our
assessment concluded that any project modifications that would avoid
adverse effects to the species are likely to also avoid adverse
modifications of the physical or biological features present in the
critical habitat units. In the event of an adverse modification
determination, we expect that reasonable and prudent alternatives to
avoid jeopardy to the species would also avoid adverse modification of
the critical habitat. Therefore, the only substantive difference
between an analysis of jeopardy and destruction or adverse modification
is the minor additional cost of the consultation for destruction or
adverse modification. Accordingly, we find the benefits of inclusion
for portions of 12 of the 14 units (see Table 2, below) the units based
on the consultation requirement for a designation of critical habitat
are minimal for the rusty patched bumble bee in areas enrolled in the
monarch CCAA.
We expect few to no additional benefits to the recovery of the
rusty patched bumble bee as a result of the inclusion of the areas
covered under the monarch CCAA. Overall, with minimal regulatory,
educational, and recovery benefits likely, we foresee limited benefits
to further the recovery of the species as a result of the designation
of critical habitat on the areas enrolled in the monarch CCCA at the
time of this final designation.
Benefits of Exclusion--Monarch CCAA Lands
The benefits of excluding the 79,859 ac (32,318 ha) of enrolled
lands in the monarch CCAA from the designation of critical habitat for
the rusty patched bumble bee are substantial and include: (1)
Continuing and strengthening our effective working relationship with
private and State landowners to promote voluntary, proactive
conservation of the rusty patched bumble bee and its habitat as opposed
to reactive regulation; (2) allowing for continued meaningful
collaboration and cooperation in working toward species recovery and
incentivizing future agreements (e.g. bumble bee CBA), potentially
including conservation benefits that might not otherwise occur; (3)
encouraging the creation of dozens of new partnerships for the
conservation benefit of the monarch butterfly and consequently, the
rusty patched bumble bee; (4) ensuring conservation measures are
effective through the Agreement's monitoring program; and (5)
encouraging the development of additional conservation easements and
other conservation and management plans in the future for other
federally listed and sensitive species beyond pollinators.
[[Page 32538]]
Partnerships with non-Federal landowners are vital to the
conservation of listed species, especially on non-Federal lands;
therefore, the Service is committed to supporting and encouraging such
partnerships through the recognition of positive conservation
contributions. In the case considered here, excluding these areas from
critical habitat will help foster the partnerships the landowners and
land managers in question have developed with Federal and State
agencies and local conservation organizations; will encourage the
continued implementation of voluntary conservation actions and
agreements for the benefit of the rusty patched bumble bees (and other
pollinators) and its habitat on these lands; and may also serve as a
model and aid in fostering future cooperative relationships with other
parties here and in other locations for the benefit of other endangered
or threatened species. Therefore, we consider the positive effect of
excluding from critical habitat areas managed by active conservation
partners to be a significant benefit of exclusion.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Monarch CCAA
Lands
We found there to be few benefits of including the areas enrolled
in the monarch CCAA as part of the final critical habitat designation
for the rusty patched bumble bee. This includes the incremental
benefits gained through the regulatory requirement to consult under
section 7 and consideration of the need to avoid destruction or adverse
modification of critical habitat and minimal additional educational
opportunities. The benefits of inclusion are outweighed by the more
substantial benefits of excluding the areas enrolled in the monarch
CCAA at the time of this designation including: (1) Continuing and
strengthening our effective working relationship with private and State
landowners to promote voluntary, proactive conservation of the rusty
patched bumble bee and its habitat as opposed to reactive regulation;
(2) allowing for continued meaningful collaboration and cooperation in
working toward species recovery and incentivizing future agreements
(e.g., bumble bee CBA), potentially including conservation benefits
that might not otherwise occur; (3) encouraging the creation of dozens
of new partnerships for the conservation benefit of the monarch
butterfly and consequently, the rusty patched bumble bee; (4) ensuring
conservation measures are effective through the Agreement's monitoring
program; and (5) encouraging the development of additional conservation
easements and other conservation and management plans in the future for
other federally listed and sensitive species beyond pollinators. In
conclusion, we have found the benefits of including the areas enrolled
in the monarch CCAA as part of the critical habitat designation for the
rusty patched bumble bee are outweighed by the benefits of excluding
these areas.
Exclusion Will Not Result in Extinction of the Species
We determined that the exclusion of areas enrolled in the monarch
CCAA at the time of this designation will not result in extinction of
the rusty patched bumble bee. Protections afforded to the monarch
butterfly (and rusty patched bumble) and their habitats by the
agreement provide assurances that the rusty patched bumble bee will not
go extinct as a result of excluding these lands from the critical
habitat designation.
An important consideration as we evaluate these exclusions and
their potential effect on the species in question is that critical
habitat does not carry with it a regulatory requirement to restore or
actively manage habitat for the benefit of listed species; the
regulatory effect of critical habitat is only the avoidance of
destruction or adverse modification of critical habitat should an
action with a Federal nexus occur. It is, therefore, advantageous for
the conservation of the species to support the proactive efforts of
non-Federal landowners who are contributing to the enhancement of
essential habitat features for listed species through exclusion. The
jeopardy standard of section 7 of the Act will also provide protection
in these occupied areas when there is a Federal nexus. Therefore, based
on the above discussion, the Secretary is exercising their discretion
to exclude approximately 79,859 ac (32,318 ha) of land from the
designation of critical habitat for the rusty patched bumble bee.
Summary of Exclusions
As discussed above, based on the information provided by entities
seeking exclusion, as well as any additional public comments received,
we evaluated whether certain lands in the proposed critical habitat
were appropriate for exclusion from this final designation pursuant to
section 4(b)(2) of the Act. We are excluding the following areas from
critical habitat designation for the rusty patched bumble bee (TABLE
2).
BILLING CODE 4333-15-P
[[Page 32539]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.002
BILLING CODE 4333-15-C
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all rules identified as significant pursuant to
section 3(f) of E.O. 12866. OIRA has determined that this final rule is
significant under E.O. 12866 and is considered an E.O. 14192 regulatory
action. We estimate that this rule will generate no more than $390,000
(2024 dollars) in annualized costs at a 7% discount rate.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
E.O. 13563 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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,
[[Page 32540]]
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 if 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 will be directly regulated by this
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 will be
directly regulated by this rulemaking, we certify that this critical
habitat designation will not have a significant economic impact on a
substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
proposed rule (89 FR 93245; November 26, 2024) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a 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, among other things, an action that
(i) meets the definition of a ``significant regulatory action'' under
E.O. 12866; and (ii) is likely to have a significant adverse effect on
the supply, distribution, or use of energy. In our economic analysis,
we did not find that this critical habitat designation would
significantly affect energy supplies, distribution, or use. This
screening analysis finds that incremental costs associated with section
7 consultations for the rusty patched bumble bee are likely limited to
administrative costs. Additionally, many of the energy distribution
rights-of-way are excluded from the final critical habitat designation
because they are enrolled in the monarch CCAA. Therefore, this action
is not a significant energy action, and no statement of energy effects
is required.
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:
(1) This rule will 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 mandate'' includes 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) This rule will not significantly or uniquely affect small
governments because 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
[[Page 32541]]
potential takings implications of designating critical habitat for
rusty patched bumble bee in a takings implications assessment. The Act
does not authorize the Service 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 and
concludes that this designation of critical habitat for the rusty
patched bumble bee 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 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 critical habitat designation with,
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, this final 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 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 necessary for 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 will 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 will not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We are designating critical habitat in accordance
with the provisions of the Act. To assist the public in understanding
the habitat needs of the species, this rule identifies the physical or
biological features essential to the conservation of the species. The
areas of designated critical habitat are presented on maps, and the
rule provides several options for the 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. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
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 on a government-to-government
basis. In accordance with 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. During the development of this rule, we approached the Tribes
whose lands overlapped with the range of the rusty patched bumble bee
in an effort to coordinate with them on the critical habitat
designation. We received interest from the Prairie Island Indian
Community in working with us on rusty patched bumble bee conservation
(unrelated to this designation). The final critical habitat does not
overlap with Prairie Island Indian Community lands, but we will
continue to coordinate with the Tribe in recovery efforts for the
species. We also actively coordinated and shared information with the
Shakopee Mdewakanton Sioux Community, whose lands overlap with a
portion of Unit 1. We will continue to work with all interested Tribal
entities regarding the conservation of rusty patched bumble and its
critical habitat and welcome continued coordination in the future.
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 Minnesota-Wisconsin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
[[Page 32542]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we 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. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by revising the entry for ``Bee, bumble, rusty
patched'' under INSECTS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bee, bumble, rusty patched....... Bombus affinis..... Wherever found..... E 82 FR 3186, 1/11/
2017; 50 CFR
17.95(i).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (i) by adding an entry for ``Rusty
Patched Bumble Bee (Bombus affinis)'' before the entry for ``Casey's
June Beetle (Dinacoma caseyi)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
Rusty Patched Bumble Bee (Bombus affinis)
(1) Critical habitat units are depicted for Boone, Cook, Kane,
Lake, Lee, McHenry, Ogle, and Winnebago Counties, Illinois; Johnson
County, Iowa; Carver, Dakota, Hennepin, Olmsted, Pierce, Ramsey, Rice,
Scott, St. Croix, Washington, and Winona Counties, Minnesota; Bath and
Highland Counties, Virginia; Greenbrier and Pocahontas Counties, West
Virginia; and Dane, Iowa, Kenosha, Milwaukee, Ozaukee, Racine, Sauk,
Washington, and Waukesha Counties, Wisconsin, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the rusty patched bumble bee consist
of the following components:
(i) For overwintering, contiguous upland forest habitat, at least
82 feet (25 meters (m)) from a non-forested edge, with plants that
provide spring pollen and nectar for spring queen foraging immediately
after emergence from diapause, containing leaf litter or duff for
burrowing, and without dense invasive plant understory vegetation.
(ii) For nesting, upland grasslands, shrublands, savannas, and the
forest edge interface between forested and non-forested natural
habitats that extends approximately 30 meters into the forest.
(iii) For nesting, abandoned rodent burrows, other mammal burrows,
existing cavities with ample cover, or similar existing cavities at the
soil surface or below to 4 feet underground.
(iv) For nesting and overwintering, well-drained, uncompacted,
loose soils sheltered from the elements.
(v) For foraging, diverse, abundant, native floral resources for
the entire active flight season.
(3) Critical habitat does not include human-made 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
July 1, 2026.
(4) Data layers defining map units were created using the data from
the Service's modeled High Potential Zones (accessed June 9, 2024) and
potential dispersal areas for rusty patched bumble bee. The projection
used in mapping and calculating distances and locations within the
units was European Petroleum Survey Group (EPSG) code 4269-North
American Datum 1983 (NAD83), which is a geographic coordinate system
used for mapping locations in North America. 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 at <a href="https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis">https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No.
FWS-R3-ES-2024-0132, 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:
Figure 1 to Rusty Patched Bumble Bee (Bombus affinis) paragraph (5)
BILLING CODE 4333-15-P
[[Page 32543]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.003
BILLING CODE 4333-15-C
(6) Unit 1: Minneapolis-St. Paul Metropolitan; Ramsey, Scott,
Dakota, Pierce, Washington, Carver, Hennepin, and St. Croix Counties,
Minnesota.
(i) Unit 1 consists of 520,854 acres (ac) (210,782 hectares (ha))
in the Minneapolis-St. Paul metropolitan area of Minnesota in Ramsey,
Scott, Dakota, Pierce, Washington, Carver, Hennepin, and St. Croix
Counties. Unit 1 is composed of primarily private lands (462,540 ac
(187,183 ha)), Minnesota State and local government-owned lands (49,891
ac (20,190 ha)), and Tribal lands (3,086 ac (1,249 ha)). Federal lands
(5,337 ac (2,160 ha)) in Unit 1 include National Park Service's
Mississippi National River and Recreational Area and Lower St. Croix
National Scenic Riverway, and the Service's Minnesota Valley National
Wildlife Refuge. Approximately 212 ac (86 ha) of privately owned lands
are managed by the U.S. Department of Agriculture's Natural Resources
Conservation Service (USDA-NRCS) Wetlands Reserve Program. Tribal lands
include Shakopee Mdewakanton Sioux Community and Shakopee Mdewakanton
Sioux Community Off-Reservation Land Trust.
(ii) Map of Units 1, 2, and 3 follows:
Figure 2 to Rusty Patched Bumble Bee (Bombus affinis) paragraph (6)(ii)
BILLING CODE 4333-15-P
[[Page 32544]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.004
BILLING CODE 4333-15-C
(7) Unit 2: Northfield; Dakota and Rice Counties, Minnesota.
(i) Unit 2 consists of 12,038 ac (4,872 ha) in Dakota and Rice
Counties. This unit includes private lands (11,542 ac (4,671 ha)), and
Minnesota State and local government-owned lands (496 ac (201 ha)).
(ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
(8) Unit 3: Rochester; Olmsted County, Minnesota.
(i) Unit 3 consists of 41,616 ac (16,841 ha) in Olmsted County.
This unit includes private lands (40,727 ac (16,482 ha)), and Minnesota
State and local government-owned lands (889 ac (360 ha)).
(ii) Map of Unit 3 is provided at paragraph (6)(ii) of this entry.
(9) Unit 4: Winona; Winona County, Wisconsin.
(i) Unit 4 consists of 28,309 ac (11,456 ha) in Winona County. This
unit includes private lands (27,905 ac (11,293 ha)), and Minnesota
State and local government-owned lands (404 ac (163 ha)).
(ii) Map of Unit 4 follows:
Figure 3 to Rusty Patched Bumble Bee (Bombus affinis) paragraph (9)(ii)
BILLING CODE 4333-15-P
[[Page 32545]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.005
BILLING CODE 4333-15-C
(10) Unit 5: Denzer; Sauk County, Wisconsin.
(i) Unit 5 consists of 26,989 ac (10,922 ha) in Sauk County. This
unit is composed of private lands (26,283 ac (10,636 ha)), and
Wisconsin State and local government-owned lands (706 ac (286 ha)).
(ii) Map of Units 5, 6, and 7 follows:
Figure 4 to Rusty Patched Bumble Bee (Bombus affinis) paragraph
(10)(ii)
BILLING CODE 4333-15-P
[[Page 32546]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.006
BILLING CODE 4333-15-C
(11) Unit 6: Bunker Hill; Iowa County, Wisconsin.
(i) Unit 6 consists of 18,316 ac (7,412 ha) in Iowa County. This
unit includes private lands (13,558 ac (5,487 ha)) and Wisconsin State
lands and government-owned lands (4,758 ac (1,925 ha)).
(ii) Map of Unit 6 is provided at paragraph (10)(ii) of this entry.
(12) Unit 7: Madison; Dane and Iowa Counties, Wisconsin.
(i) Unit 7 consists of 205,127 ac (83,011 ha) in Dane and Iowa
Counties. This unit includes primarily private lands (198,107 ac
(80,171 ha)), Wisconsin State and local government-owned lands (6,712
ac (2,716 ha)). This unit contains 4 ac (2 ha) of Ho-Chunk Nation
Tribal lands. Federal lands (156 ac (63 ha)) in Unit 7 include the U.S.
Forest Service's Forest Products Experimental Laboratory, National Park
Service's Ice Age National Scenic Trail, and the Dane County Waterfowl
Production Area owned by the U.S. Fish and Wildlife Service. In this
unit, approximately 304 ac (123 ha) of private
[[Page 32547]]
lands are managed by the USDA-NRCS Wetlands Reserve Program, and
approximately 53 ac (21 ha) of private lands are managed by the USDA-
NRCS Emergency Waters Protection Program.
(ii) Map of Unit 7 is provided at paragraph (10)(ii) of this entry.
(13) Unit 8: Milwaukee; Waukesha, Ozaukee, Washington, Milwaukee,
and Racine Counties, Wisconsin.
(i) Unit 8 consists of 238,928 acres (96,691 hectares) in Waukesha,
Ozaukee, Washington, Milwaukee, and Racine Counties. This unit includes
primarily private lands (225,865 ac (91,404 ha)), and Wisconsin State
and local government-owned lands (12,927 ac (5,231 ha)). Tribal lands
include the Forest County Potawatomi Off-Reservation Land Trust (10 ac
(4 ha)). Federally owned lands include 5 ac (2 ha) owned by the Bureau
of Land Management and 126 ac (51 ha)) of Department of Defense-owned
lands. Approximately 66 ac (27 ha) of private lands in this unit are
managed by USDA-NRCS Wetlands Reserve Program.
(ii) Map of Unit 8 follows:
Figure 5 to Rusty Patched Bumble Bee (Bombus affinis) paragraph
(13)(ii)
BILLING CODE 4333-15-P
[[Page 32548]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.007
(14) Unit 9: Rockford; Winnebago, Boone, and Ogle Counties,
Illinois.
(i) Unit 9 consists of 130,668 ac (52,879 ha) in Boone, Ogle, and
Winnebago Counties. This unit includes primarily private lands (128,064
ac (51,826 ha)), and Illinois State and local government-owned lands
(2,604 ac (1,054 ha)). Approximately 669 ac (271 ha) of private lands
in this unit are managed by the USDA-NRCS Wetlands Reserve Program.
(ii) Map of Unit 9 and 12 follows:
Figure 6 to Rusty Patched Bumble Bee (Bombus affinis) paragraph
(14)(ii)
[[Page 32549]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.008
(15) Unit 10: McHenry; McHenry and Lake Counties, Illinois, and
Kenosha County, Wisconsin.
(i) Unit 10 consists of 65,464 ac (26,492 ha) in McHenry and Lake
Counties, Illinois, and Kenosha County, Wisconsin. This unit includes
primarily private lands (58,601 ac (23,715 ha)), and Illinois State and
local government-owned lands (6,861 ac (2,777 ha)). The Bureau of Land
Management owns 2 ac (1 ha) of land in this unit. A conservation
easement within the Hackmatack National Wildlife Refuge, managed by the
Service, falls partially (39 ac (16 ha)) within this unit.
Approximately 412 ac (167 ha) of private lands within this unit are
managed by the USDA-NRCS Wetlands Reserve Program.
(ii) Map of Units 10 and 11 follows:
Figure 7 to Rusty Patched Bumble Bee (Bombus affinis) paragraph
(15)(ii)
[[Page 32550]]
[GRAPHIC] [TIFF OMITTED] TR01JN26.009
(16) Unit 11: Elgin; Lake, Cook, Kane, and McHenry Counties,
Illinois.
(i) Unit 11 consists of 69,761 ac (28,231 ha) in Cook, Kane, Lake,
and McHenry Counties. This unit includes primarily private lands
(57,285 ac (23,182 ha)), and Illinois State and local government-owned
lands (12,494 ac (5,056 ha)).
(ii) Map of Unit 11 is provided at paragraph (15)(ii) of this
entry.
(17) Unit 12: Lost Nation; Ogle and Lee Counties, Illinois.
(i) Unit 12 consists of 12,643 ac (5,116 ha) in Lee and Ogle
Counties. This unit is composed of private lands (12,046 ac (4,875
ha)), and State lands owned by Iowa Department of Natural Resources
(597 ac (242 ha)).
(ii) Map of Unit 12 is provided at paragraph (14)(ii) of this
entry.
(18) Unit 13: Iowa City; Johnson County, Iowa.
(i) Unit 13 consists of 45,631 ac (18,466 ha) in Johnson County.
This unit includes primarily private lands (30,500 ac (12,343 ha)),
Iowa State and local government-owned lands (3,922 ac (1,587 ha)).
Federal lands (11,209 ac
[[Page 32551]]
(4,536 ha)) in this unit include U.S. Army Corps of Engineers'
Coralville Lake and the Coralville Reservoir. A portion of the U.S.
Army Corps of Engineers' land in this unit is managed by the State of
Iowa (1,333 ac (539 ha)) and the University of Iowa (421 ac (170 ha)).
(ii) Map of Unit 13 follows:
Figure 8 to Rusty Patched Bumble Bee (Bombus affinis) paragraph
(18)(ii)
[GRAPHIC] [TIFF OMITTED] TR01JN26.010
(19) Unit 14: Back Creek Mountain; Highland and Bath Counties,
Virginia, and Greenbrier and Pocahontas Counties, West Virginia.
(i) Unit 14 consists of 118,589 ac (47,991 ha) in Highland and Bath
Counties, Virginia, and Greenbrier and Pocahontas Counties, West
Virginia. This unit includes Federal lands (105,551 ac (42,715 ha)),
private lands (11,193 ac (4,530 ha)), and Virginia State lands (1,845
ac (747 ha)). Federal lands
[[Page 32552]]
include the Monongahela and the George Washington-Jefferson National
Forests.
(ii) Map of Unit 14 follows:
Figure 9 to Rusty Patched Bumble Bee (Bombus affinis) paragraph
(19)(ii)
[GRAPHIC] [TIFF OMITTED] TR01JN26.011
[[Page 32553]]
* * * * *
Brian R. Nesvik,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2026-10846 Filed 5-29-26; 8:45 am]
BILLING CODE 4333-15-C
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on June 1, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.