2024-27767. Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Contiguous U.S. Distinct Population Segment of the Canada Lynx

Table 1—Proposed Western Critical Habitat Units for Canada Lynx (MI² (KM² ))

[Area estimates reflect all land within critical habitat unit boundaries]

Critical habitat unit	Federal	State	Private	Tribal	Other	Total
3. Northern Rockies	7,193 (18,630)	310 (803)	214 (554)	230 (596)	12 (30)	7,959 (20,613)
4. North Cascades	2,178 (5,641)	170 (441)	6 (15)	NA	NA	2,354 (6,097)
5. Greater Yellowstone Area	1,117 (2,892)	1 (3)	3 (7)	NA	NA	1,121 (2,902)
6. Southern Rockies	6,854 (17,752)	50 (129)	684 (1,771)	37 (97)	54 (140)	7,679 (19,889)
Total	17,342 (44,915)	531 (1,376)	906 (2,346)	267 (692)	66 (170)	19,112 (49,500)
Note: Area sizes may not sum due to rounding. Numbers are calculated using the U.S. Geological Survey's (USGS) Protected Areas Database for the United States 3.0 dataset supplemented with the BLM 2023 Surface Management Agency dataset.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Canada lynx DPS below.

Unit 3: Northern Rockies

Unit 3 consists of 7,959 mi² (20,613 km² ) located in northwestern Montana in portions of Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Pondera, Powell, Ravalli, and Teton Counties and northern and east-central Idaho in portions of Bonner, Boundary, Clearwater, and Idaho Counties. The current proposal represents a 1,808-mi² (4,683-km² ) reduction in the 2014 designation for this unit, although it includes new areas of proposed critical habitat in northern Idaho and along the central Idaho-Montana border. This unit was occupied by lynx at the time of listing and is currently occupied by the species. Lynx are known to be widely distributed throughout this unit and breeding has been documented in multiple locations. This unit supports a resident population thought by lynx researchers to number between 200 and 300 lynx (Lynx SSA Team 2016, p. 41). This unit is directly connected to lynx habitats and populations in southwestern Alberta and southeastern British Columbia, Canada. Lynx in this unit represent the southern extent of a larger cross-border population, most of which occurs in Western Canada.

Land ownership within the unit is 90 percent Federal, 4 percent State, 3 percent Tribal, and 3 percent private. Federal lands in this unit include National Forest System lands within the Kootenai, Flathead, Lolo, and Helena-Lewis and Clark National Forests in Montana and the Idaho Panhandle National Forest and the Clearwater portion of the Nez Perce-Clearwater National Forest in Idaho; National Park Service lands in Glacier National Park; and BLM lands in the Garnet Resource Area. State lands in this unit include areas managed by the Montana Department of Natural Resources and Conservation; Montana Fish, Wildlife, and Parks; and the Idaho Department of Lands. Tribal lands within this unit include parts of the Confederated Salish and Kootenai Tribes Flathead Reservation and the Blackfeet Reservation, both in Montana. State and Tribal lands in this unit are included in the proposed critical habitat designation but will be considered for exclusion in accordance with section 4(b)(2) of the Act and some or all may be excluded from the final designation.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time. ( print page 94665)

Unit 4: North Cascades

Unit 4 consists of 2,354 mi² (6,097 km² ) located in north-central Washington in portions of northern Chelan, Okanogan, and eastern Skagit and Whatcom Counties. The current proposal represents a 520-mi² (1,346-km² ) increase from the 2014 designation for this unit. This unit was occupied by lynx at the time of listing and is currently occupied by the species. Lynx are known to be distributed throughout much of this unit and breeding has been documented. The Service estimates that this unit is potentially capable of supporting a resident population of 90-120 lynx, but extensive large wildfires in roughly half of lynx habitat over the past 15-20 years are thought to have reduced its carrying capacity commensurately (but perhaps temporarily). Nonetheless, a systematic lynx DNA collection effort between 2018 to 2023 documented 73 individual lynx in north central Washington (Akins and Ransom 2024, pers. comm.). This unit is directly connected to lynx habitats and populations in southern British Columbia, Canada, and lynx in this unit represent the southern extent of a larger cross-border population, most of which occurs in Western Canada.

Land ownership within the unit is 93 percent Federal and 7 percent State, with small parcels of private lands that represent less than one-half of 1 percent of the unit. Federal lands include 1,732 mi² (4,485 km² ) within the Okanogan-Wenatchee National Forest and 117 mi² (303 km² ) of North Cascades National Park. It also includes 39 mi² (100 km² ) of State Forest lands within the Loomis Natural Resources Conservation Area, which is managed by the Washington Department of Natural Resources. We excluded these State Forest lands from previous critical habitat designations and will again consider them for exclusion under section 4(b)(2) of the Act.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to extensive, high-intensity wildfires, road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

Unit 5: Greater Yellowstone Area

Unit 5 consists of 1,121 mi² (2,902 km² ) located in west-central and northwestern Wyoming in portions of Fremont, Lincoln, Sublette, and Teton Counties. The current proposal represents an 8,025-mi² (20,785-km² ) reduction from the 2014 designation for this unit. Previous research documented very low snowshoe hare densities throughout much of the Greater Yellowstone Area (GYA) (Hodges et al. 2009, entire), but with small pockets of habitat on the Bridger-Teton National Forest in the southern part of the GYA supporting high hare densities (Berg et al. 2012, p. 1483). Recent habitat modeling that is foundational to this critical habitat revision (Olson et al. 2021, entire) demonstrated that most of the GYA, including areas previously designated as lynx critical habitat, does not contain the physical and biological features necessary to support persistent lynx residency. This unit was occupied at the time of listing and occasional lynx occurrence has been documented since then. It is uncertain whether this unit historically supported a small resident population or if lynx presence and reproduction were and are naturally ephemeral and intermittent. The area currently does not appear to support a resident breeding population.

Based on home range sizes and lynx densities estimated elsewhere in the western part of the DPS range (Montana, Washington, Colorado), the Service estimates that this unit could potentially support a population of 25-50 lynx if sufficient habitat conditions and hare densities could be achieved and maintained, and a resident lynx population is established via translocation. This unit is not directly connected to lynx habitats and populations elsewhere in the DPS range or in the core of the species' range in Western Canada. However, historical records suggest that dispersing lynx associated with cyclic irruptions of lynx from Canada into the northern contiguous United States occasionally reached the GYA (McKelvey et al. 2000a, pp. 229-230). Additionally, at least nine radio-marked lynx released in Colorado subsequently moved into or through the GYA unit in the period 1999-2010, with several establishing temporary residency in the area proposed for critical habitat designation (Ivan 2017, entire).

Land ownership within the unit is more than 99 percent Federal and includes small (less than 4 mi² (10 km² ) parcels of private and State lands; there are no Tribal lands. Most of this unit occurs within the Bridger-Teton National Forest, with a smaller area in the Shoshone National Forest and several small parcels of BLM lands managed by the Kemmerer and Pinedale Field Offices.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

Unit 6: Southern Rockies

Unit 6 consists of 7,679 mi² (19,889 km² ) located in west-central and southwestern Colorado in portions of Archuleta, Boulder, Chaffee, Clear Creek, Conejos, Dolores, Eagle, Gilpin, Grand, Gunnison, Hinsdale, La Plata, Lake, Mineral, Montezuma, Montrose, Ouray, Park, Pitkin, Rio Grande, Saguache, San Juan, San Miguel, and Summit Counties, and northern New Mexico in portions of Rio Arriba County. Critical habitat was not previously designated in the Southern Rockies. At the time of listing, this unit was occupied by lynx translocated from Canada and Alaska and it is currently occupied by the descendants of those released lynx. It is uncertain whether this unit historically supported a resident population or if lynx presence was naturally ephemeral and intermittent.

The area currently supports a resident breeding population that is the result of the State of Colorado's Canada Lynx Reintroduction Program, which included the 1999-2006 translocations of 218 lynx from Canada and Alaska into the San Juan Mountains in southwestern Colorado, with continued lynx occurrence and reproduction documented annually since then. Lynx researchers with Colorado Parks and ( print page 94666) Wildlife estimate the current size of the population at 75-150 resident lynx. This unit is not directly connected to lynx habitats and populations elsewhere in the DPS range or in the core of the species' range in western Canada. However, historical records suggest that dispersing lynx associated with cyclic irruptions of lynx from Canada into the northern contiguous United States occasionally reached the Southern Rockies. Some of the lynx released into Colorado dispersed into surrounding States, with some traveling north into the GYA, Montana and Idaho.

Land ownership within the unit is almost 89 percent Federal, almost 9 percent private, 1 percent State, and less than 1 percent Tribal and local government. Most (96 percent of) Federal lands occur on national forests, including the Arapaho, Gunnison, Pike, Rio Grande, Roosevelt, San Isabel, San Juan, Uncompahgre, and White River National Forests in Colorado, and the Carson National Forest in New Mexico. The remaining 4 percent of Federal lands occur on BLM lands, mostly those managed by the Gunnison Field Office with smaller parcels managed by the Kremmling, Royal Gorge, and Uncompahgre field offices, and smaller parcels of U.S. Fish and Wildlife Service and Bureau of Reclamation lands. Less than 1 percent of this unit includes Off-Reservation Tribal Trust lands of the Jicarilla Apache Nation in northern New Mexico. Tribal lands will be considered for exclusion in accordance with section 4(b)(2) of the Act and some or all may be excluded from the final designation. It also includes small parcels of State and local government lands which, combined, represent less than one-half of 1 percent of the proposed critical habitat designation.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species (50 CFR 402.02).

Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during formal consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation. Reinitiation of consultation is required and shall be requested by the Federal agency, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action. As provided in 50 CFR 402.16, the requirement to reinitiate consultations for new species listings or critical habitat designation does not apply to certain agency actions ( e.g., land management plans issued by the BLM in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires that our Federal Register documents “shall, to the maximum extent practicable also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify [critical] habitat, or may be affected by such designation.” Activities that may be affected by designation of critical habitat for the Canada lynx include those that may affect the physical or biological features of the Canada lynx' critical habitat (see Physical or Biological Features Essential to the Conservation of the Species). ( print page 94667)

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DoD lands with a completed INRMP are within the proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if the benefits of exclusion outweigh those of inclusion, so long as exclusion will not result in extinction of the species concerned. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016).

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In our final rules, we explain any decision to exclude areas, as well as decisions not to exclude, to make clear the rational basis for our decision. We describe below the process that we use for taking into consideration each category of impacts and any initial analyses of the relevant impacts.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”

The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis.

Executive Order (E.O.) 12866 and E.O. 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with these E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. To determine whether the designation of critical habitat may have an economic effect of $200 million or more in any given year (which would trigger section 3(f)(1) of E.O. 12866, as amended by E.O. 14094), we used a screening analysis to assess whether a revised designation of critical habitat for the Canada lynx DPS is likely to exceed this threshold.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Canada lynx DPS (Industrial Economics, Inc. (IEc) 2024, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographical areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation.

The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat ( print page 94668) typically causes little if any incremental impacts above and beyond the impacts of listing the species. As a result, we generally focus the screening analysis on areas of unoccupied critical habitat (unoccupied units or unoccupied areas within occupied units).

Overall, the screening analysis assesses whether designation of critical habitat is likely to result in any additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our economic analysis of the proposed critical habitat designation for the Canada lynx DPS and is summarized in the narrative below.

As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the proposed critical habitat designations. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Canada lynx, first we identified, in the IEM dated May 31, 2024, probable incremental economic impacts associated with the following categories of activities: (1) timber harvest; (2) silviculture; (3) wildfire response and management; (4) fuels reduction; (5) recreation management; (6) domestic livestock grazing; (7) infrastructure/facilities maintenance/development; and (8) residential development/construction. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. Because the species is listed, in areas where the Canada lynx is present, Federal agencies are required to consult with the Service under section 7 of the Act on activities they authorize, fund, or carry out that may affect the species. If when we finalize this proposed critical habitat designation, Federal agencies would be required to consider the effects of their actions on the designated habitat, and if the Federal action may affect critical habitat, our consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.

In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation ( i.e., difference between the jeopardy and adverse modification standards) for the Canada lynx's critical habitat. Because this species has been listed since 2000 and critical habitat has been designated since 2006, we have a long consultation history to inform this distinction. The following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would likely adversely affect the essential physical or biological features of occupied critical habitat are also likely to adversely affect the species itself. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the revision and designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed revised critical habitat designation for the Canada lynx DPS in the Western United States includes approximately 19,112 mi² (49,500 km² ) in four occupied critical habitat units in Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming. This proposed revision results in an approximately 1,650-mi² (4,274-km² ) reduction from the 2014 critical habitat designation in the Western United States. Land ownership is approximately 91 percent Federal, 5 percent private, 3 percent State, 1 percent Tribal, and less than 1 percent other. This rule makes no updates to existing critical habitat in Maine and Minnesota; therefore, the economic analysis does not consider the effects of critical habitat in those States.

The incremental effects of revising critical habitat for the Canada lynx are likely to be limited to changes in administrative effort to evaluate the potential for adverse modification of Canda lynx critical habitat. The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. This analysis finds that administrative costs and cost savings are on the order of $66,000 and $47,000 respectively, in a given year (2024 dollars). The expected net effect of revising critical habitat for the Canada lynx is a $19,000 increase in administrative costs per year. Thus, this analysis finds that despite a net reduction in the size of critical habitat for the species, the costs of critical habitat are expected to increase given the geographic representation of consultations across the new and removed areas. Incremental economic benefits and forgone benefits are not anticipated. Therefore, the rule is unlikely to meet the threshold for a significant rule as defined in section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.

This finding is based on several factors, including:

• No change in costs of complying with critical habitat in existing critical habitat that is included in the proposed revised critical habitat.
• The proposed units are considered occupied by the Canada lynx, and occupied units are afforded significant baseline protection under the Act due to the presence of the listed species.
• All projects with a Federal nexus would be subject to section 7 consultation regardless of the designation of critical habitat due to the presence of the listed species.
• Critical habitat is not likely to change the Service's recommendation for project modifications as part of future consultations considering the Canada lynx.
• The Canada lynx receives additional baseline protection from co-occurring listed species, which include species with overlapping critical habitat and similar resource and habitat needs.

Our analysis finds that the proposed revised critical habitat for the Canada lynx is unlikely to result in economic impacts that exceed $200 million in any single year; therefore, they would not be significant. The incremental effects resulting from the proposed critical habitat for the Canada lynx are subject to uncertainty due to limited information on what future projects may require section 7 consultation that considers Canada lynx habitat. However, the focus of the screening analysis is on the likelihood that this proposed rule is economically significant. It is unlikely that additional data gathering and analysis to address uncertainty would change the findings of this analysis.

We are soliciting data and comments from the public on the economic analysis discussed above. During the development of a final designation, we will consider the information presented in the economic analysis and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section ( print page 94669) 4(b)(2), our implementing regulations at 50 CFR 424.19, and the 2016 Policy. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” However, we must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i) because section 4(b)(2) requires us to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.

However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the Canada lynx DPS are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security.

Consideration of Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are approved and permitted conservation agreements or plans covering the species in the area—such as safe harbor agreements (SHAs), candidate conservation agreements with assurances (CCAAs) or “conservation benefit agreement” or “conservation agreement” (CBAs) (CBAs are a new type of agreement replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April 12, 2024)) or HCPs, or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation.

When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.

In the case of the Canada lynx, the benefits of critical habitat include public awareness of the presence of Canada lynx and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for Canada lynx due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that result from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.

After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

Private or Other Non-Federal Conservation Plans or Agreements Associated With Permits Under Section 10 of the Act

As mentioned above, as part of our section 4(b)(2) analysis, we consider whether there are approved and permitted conservation agreements or plans covering the species in the area such as SHAs, CCAAs, CBAs or HCPs. Under sections 10(a)(1)(A) and 10(a)(1)(B) of the Act, non-Federal entities may develop these agreements or plans when they seek authorization for take that may otherwise be prohibited under section 9 through an enhancement of survival (EOS) or incidental take permit (ITP), respectively.

Property owners seeking an EOS permit collaborate with the Service to develop a CBA to support the application. The EOS permit authorizes take associated with implementing the agreement and ongoing land management activities that provide a net conservation benefit to the covered ( print page 94670) species. The CBA replaces two previous types of voluntary agreements (SHAs and CCAAs) going forward for new agreements after May 2024. However, permitted SHAs and CCAAs or those noticed in the Federal Register prior to May 2024 remain in effect.

For incidental take permits issued under section 10(a)(1)(B) of the Act, applicants are required to develop a conservation plan, more commonly known as an HCP, to support their application. ITPs authorize take that is incidental to, but not the purpose of, carrying out otherwise lawful activities provided that the impact of the taking is minimized and mitigated to the maximum extent practicable.

For both section 10(a)(1)(A) and 10(a)(1)(B) permits, we provide permittees with assurances. In the case of section 10(a)(1)(A) permits, we may not require additional or different conservation measures to be undertaken by a permittee without the consent of the permittee. In the case of section 10(a)(1)(B), we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the HCP.

We place great value on the partnerships that are developed during the preparation and implementation of conservation plans and agreements. In some cases, permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone.

When we undertake a discretionary section 4(b)(2) exclusion analysis based on conservation plans or agreements, we anticipate consistently excluding such areas if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the plan meets all of the following three factors:

a. The permittee is properly implementing the CCAA/SHA/HCP and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the CCAA/SHA/HCP, implementing agreement, and permit.

b. The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species.

c. The CCAA/SHA/HCP specifically addresses that species' habitat and meets the conservation needs of the species in the planning area.

See the 2016 Policy for additional details. Because combining types of agreements such as SHAs and CCAAs into the term “CBAs” is a recent development (89 FR 26070; April 12, 2024), the 2016 Policy did not expressly reference CBAs. However, because CBAs replace CCAAs and SHAs moving forward we treat CBAs similarly to how we treat CCAAs/SHAs/HCPs described above.

The proposed critical habitat designation includes areas that are covered by the following permitted plan providing for the conservation of the Canada lynx: Montana Department of Natural Resources and Conservation (DNRC) Forested State Trust Lands Habitat Conservation Plan. After considering the factors described above, we have identified 159 mi² (413 km² ) that we have reason to consider excluding because of this permitted plan. We describe below our reasons for considering these areas for potential exclusion.

State of Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (DNRC HCP)

The Montana DNRC multi-species HCP includes a lynx conservation strategy that minimizes impacts of forest management activities on lynx, complements lynx conservation objectives set forth in the States' comprehensive fish and wildlife conservation strategy (Montana Department of Fish, Wildlife and Parks 2005, entire), and describes conservation commitments that are based on recent information from lynx research in Montana (Montana DNRC and U.S. Fish and Wildlife Service 2010, pp. 2-45-2-61). It also commits to active lynx monitoring and adaptive management programs (Montana DNRC and U.S. Fish and Wildlife Service 2010, pp. 4-27-4-37). The Montana DNRC worked closely with the Service in developing and completing a National Environmental Policy Act (NEPA) analysis on this multi-species HCP (Montana DNRC and U.S. Fish and Wildlife Service 2010, entire).

In our biological opinion regarding potential impacts to lynx of implementation of this HCP, the Service concluded that the HCP promotes the conservation of lynx and their habitat through increased conservation commitments by [Montana] DNRC for forest management practices, maintenance of the habitat mosaic, structure, and components required to support lynx and their primary prey, the snowshoe hare, monitoring, and adaptive management (Service 2011, p. III-94). We determined that the proposed action is not likely to jeopardize the continued existence of Canada lynx within the contiguous U.S. DPS and that forest management activities managed under the conservation commitments of the DNRC HCP would not appreciably reduce the likelihood of survival and recovery of Canada lynx (Service 2011, p. III-94).

In the previous final revised critical habitat designation, published in the Federal Register on September 12, 2014 (79 FR 54782), we determined that the benefits of excluding lands managed in accordance with the DNRC HCP outweighed the benefits of including them in the designation, and that doing so would not result in extinction of the species. We, therefore, again consider excluding 159 mi² (413 km² ) of forested State Trust lands managed in accordance with the DNRC HCP from the revised lynx critical habitat designation in Unit 3. However, in the final rule, we will again weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

Non-Permitted Conservation Plans, Agreements, or Partnerships

We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service.

Shown below is a non-exhaustive list of factors that we consider in evaluating how non-permitted plans or agreements affect the benefits of inclusion or exclusion. These are not required elements of plans or agreements. Rather, they are some of the factors we may consider, and not all of these factors apply to every plan or agreement.

(i) The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the ( print page 94671) realization of the benefits expected from the plan, agreement, or partnership.

(ii) The extent of public participation in the development of the conservation plan.

(iii) The degree to which agency review and required determinations ( e.g., State regulatory requirements) have been completed, as necessary and appropriate.

(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required.

(v) The demonstrated implementation and success of the chosen mechanism.

(vi) The degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species.

(vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.

(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

The proposed critical habitat designation includes areas that are covered by the following non-permitted plan providing for the conservation of the Canada lynx: State of Washington Department of Natural Resources (WDNR) Lynx Habitat Management Plan for DNR-managed Lands (WDNR LHMP). After considering the factors described above, we have identified 168 mi² (435 km² ) that we have reason to consider excluding because of this plan. We describe below our reasons for considering these areas for potential exclusion.

State of Washington Department of Natural Resources Lynx Habitat Management Plan for DNR-Managed Lands (WDNR LHMP)

The WDNR LHMP encompasses 197 mi² (510 km² ) of WDNR-managed lands distributed throughout north-central and northeastern Washington in areas delineated as Lynx Management Zones in the Washington State Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-13). Of the area covered by the plan, 168 mi² (435 km² ) overlaps the area proposed for designation as critical habitat. The WDNR LHMP was finalized in 2006 and is a revision of the lynx plan that WDNR began implementing in 1996. The 1996 plan was developed as a substitute for a species-specific critical habitat designation required by Washington Forest Practices rules in response to the lynx being State-listed as threatened (Washington DNR 2006, p. 5). The 2006 WDNR LHMP provided further provisions to avoid the incidental take of lynx (Washington DNR 2006, p. 6). WDNR is committed to following the LHMP until 2076, or until the lynx is delisted (Washington DNR 2006, p. 6). WDNR requested that lands subject to the plan be excluded from previous critical habitat designation in 2014.

The WDNR LHMP contains measures to guide WDNR in creating and preserving quality lynx habitat through its forest management activities. The objectives and strategies of the LHMP are developed for multiple planning scales (ecoprovince and ecodivision, lynx management zone, lynx analysis unit (LAU), and ecological community), and include:

(1) Encouraging genetic integrity at the species level by preventing bottlenecks between British Columbia and Washington by limiting size and shape of temporary non-habitat along the border and maintaining major routes of dispersal between British Columbia and Washington;

(2) Maintaining connectivity between subpopulations by maintaining dispersal routes between and within zones and arranging timber harvest activities that result in temporary non-habitat patches among watersheds so that connectivity is maintained within each zone;

(3) Maintaining the integrity of requisite habitat types within individual home ranges by maintaining connectivity between and integrity within home ranges used by individuals and/or family groups; and

(4) Providing a diversity of successional stages within each LAU and connecting denning sites and foraging sites with forested cover without isolating them with open areas by prolonging the persistence of snowshoe hare habitat and retaining coarse woody debris for denning sites (Washington DNR 2006, p. 29).

The LHMP identifies specific guidelines to achieve the objectives and strategies at each scale; it also describes how WDNR will monitor and evaluate the implementation and effectiveness of the LHMP by providing implementation monitoring reports to the Service and Washington Department of Fish and Wildlife every 2 years (Washington DNR 2006, pp. 29-63).

In both of the previous final revised critical habitat designations for lynx, published in the Federal Register on February 25, 2009 (74 FR 8616) and September 12, 2014 (79 FR 54782), we determined that the benefits of excluding lands managed in accordance with the WDNR LHMP outweighed the benefits of including them in the designation, and that doing so would not result in extinction of the species. We again consider excluding 168 mi² (435 km² ) of lands managed in accordance with the WDNR LHMP from the revised lynx critical habitat designation. However, in the final rule, we will again weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

Tribal Lands

Several Executive Orders, Secretary's Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis.

A joint Secretary's Order that applies to both the Service and the National Marine Fisheries Service (NMFS)— Secretary's Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206)—is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, the Appendix to S.O. 3206 explicitly recognizes the right of Tribes to participate fully in any listing process that may affect Tribal rights or Tribal trust resources; this includes the designation of critical habitat. Section 3(B)(4) of the Appendix requires the Service to consult with affected Tribes when considering the designation of critical habitat in an area that may impact Tribal trust resources, Tribally owned fee lands, or the exercise of Tribal rights. That provision also instructs the Service to avoid including Tribal lands within a critical habitat designation unless the area is essential to conserve a listed species, and it requires the Service to evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.

Our implementing regulations at 50 CFR 424.19 and the 2016 Policy are consistent with S.O. 3206. When we undertake a discretionary exclusion analysis under section 4(b)(2) of the Act, in accordance with S.O. 3206, we consult with any Tribe whose Tribal trust resources, Tribally owned fee ( print page 94672) lands, or Tribal rights may be affected by including any particular areas in the designation. We evaluate the extent to which the conservation needs of the species can be achieved by limiting the designation to other areas and give great weight to Tribal concerns in analyzing the benefits of exclusion.

However, S.O. 3206 does not override the Act's statutory requirement of designation of critical habitat. As stated above, we must consult with any Tribe when a designation of critical habitat may affect Tribal lands or resources. The Act requires us to identify areas that meet the definition of “critical habitat” ( i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management considerations or protection and unoccupied areas that are essential to the conservation of a species), without regard to land ownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretaries' statutory authority under the Act or other statutes.

The proposed critical habitat designation includes the following Tribal lands or resources: the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation in Montana (Unit 3), the Blackfeet Indian Reservation in Montana (Unit 3), and Jicarilla Apache Tribal Trust Lands in New Mexico (Unit 6).

Flathead Indian Reservation Lands

In the previous final rules designating revised critical habitat for lynx, published in the Federal Register on February 25, 2009 (74 FR 8616) and September 12, 2014 (79 FR 54782), we determined that the benefits of excluding Flathead Indian Reservation Lands outweighed the benefits of including them. We determined that exclusion of these Tribal lands from the designation of critical habitat for the lynx will not result in the extinction of the species because the Confederated Salish and Kootenai Tribes of the Flathead Nation implement programs for the conservation of the species, and physical and biological features essential to it, in occupied areas. The protections afforded to the lynx under the jeopardy standard will remain in place for the areas considered for exclusion from revised critical habitat. Therefore, and in light of Secretary's Order 3206 and Tribal management of lynx and their habitat, we are considering excluding 186 mi² (482 km² ) of Flathead Indian Reservation Lands from the revised lynx critical habitat designation. However, in the final rule, we will again weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

Blackfeet Indian Reservation Lands & Jicarilla Apache Tribal Trust Lands

Approximately 44 mi² (114 km² ) of Blackfeet Indian Reservation Lands and 37 mi² (97 km² ) of Jicarilla Apache Tribal Trust lands overlaps the area proposed for designation as critical habitat for the Canada lynx in the Western United States. In light of Secretary's Order 3206, we will consider these lands for exclusion from the final critical habitat designation. We will coordinate with these Tribes to evaluate any programs that are implemented for the conservation of the species, and physical and biological features essential to it, in occupied areas on Tribal lands. We will weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

Summary of Exclusions Considered Under 4(b)(2) of the Act

We have reason to consider excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the Canada lynx DPS in the Western United States. Table 2 below provides approximate areas (mi² , km² ) of lands that meet the definition of critical habitat, but for which we are considering possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule.

Table 2—Areas Considered for Exclusion by Unit for Canada Lynx Critical Habitat

Unit	Specific area	Areas meeting the definition of critical habitat considered for exclusion, in mi2 (km2 )	Reasons for considering exclusion
3. Northern Rockies	Tribal Lands: Flathead Reservation, MT	186 (482)	Confederated Salish and Kootenai Tribes of the Flathead Nation land management plan with considerations for conserving lynx habitat on Tribal lands within the Reservation.
3. Northern Rockies	Tribal Lands: Blackfeet Reservation, MT	44 (114)	Existing land management.
3. Northern Rockies	Montana DNRC Multi-species Habitat Conservation Plan	159 (413)	Existing Habitat Conservation Plan (HCP) with protections for lynx habitat on all DNRC State Trust lands.
4. North Cascades	Washington DNR Lynx Habitat Management Plan	168 (435)	Existing management plan that includes considerations for conserving lynx habitat.
6. Southern Rockies	Tribal Lands: Jicarilla Apache Tribal Trust Lands, NM	37 (97)	Existing land management.