`[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Proposed Rules]
[Pages 94656-94680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27767]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2024-0142; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH59


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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[[Page 94657]]

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise the critical habitat designation for the contiguous U.S. 
distinct population segment (DPS) of the Canada lynx (Lynx canadensis) 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 19,112 square miles (49,500 square kilometers) in 
Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming fall 
within the boundaries of the proposed revisions to the critical habitat 
designation. We also announce the availability of an economic analysis 
of the proposed revised designation of critical habitat for the Canada 
lynx DPS.

DATES: We will accept comments received or postmarked on or before 
January 28, 2025. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by January 28, 2025.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R6-ES-2024-0142, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R6-ES-2024-0142, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report addendum, are available on the 
Service's website at https://ecos.fws.gov/ecp/species/A073?, at https://www.regulations.gov at Docket No. FWS-R6-ES-2024-0142, or both. If we 
finalize the critical habitat designation, we will make the coordinates 
or plot points or both from which the maps are generated available at 
https://www.regulations.gov at Docket No. FWS-R6-ES-2024-0142 and on 
the Service's website at https://www.fws.gov/species/canada-lynx-lynx-canadensis.

FOR FURTHER INFORMATION CONTACT: Amity Bass, Field Supervisor, U.S. 
Fish and Wildlife Service, Montana Ecological Services Field Office, 
585 Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-5225. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States. Please see Docket No. FWS-R6-ES-2024-0142 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), any species that is determined to be threatened or endangered 
requires critical habitat to be designated to the maximum extent 
prudent and determinable. Designations and revisions of critical 
habitat can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    The contiguous U.S. distinct population segment (DPS) of the Canada 
lynx DPS was listed as a threatened species in 2000. We designated 
critical habitat for the Canada lynx DPS in 2006 and revised the 
designation in 2009 and 2014. In 2022, the Service committed in a 
settlement agreement to submit to the Federal Register a proposed rule 
on the revised designation of critical habitat for the Canada lynx DPS 
by November 21, 2024.
    What this document does. This document proposes to revise the 
existing designation of critical habitat for the threatened contiguous 
U.S. DPS of the Canada lynx. Because the Western United States was the 
subject of a 2016 court order that found fault with our 2014 final 
critical habitat rule for not designating critical habitat in Colorado 
and in five National Forests in Idaho and Montana, and because we have 
new scientific information on lynx habitat in the Western United 
States, we are proposing to revise Canada lynx critical habitat in the 
Western United States only. We are not proposing any revisions to 
critical habitat in Maine and Minnesota.
    The basis for our action. Section 3(5)(A) of the Act defines 
critical habitat as (i) the specific areas within the geographical area 
occupied by the species, at the time it is listed, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protections; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary of the Interior (Secretary) that 
such areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) Specific information on:
    (a) The amount and distribution of Canada lynx habitat in the 
Western United States;
    (b) Any additional areas occurring within the range of the species 
in the Western United States that should be included in the designation 
because they (i) were occupied at the time of listing and contain the 
physical or biological features that are essential to the conservation 
of the species and that may require special management considerations 
or protection, or (ii) were unoccupied at the time of listing and are 
essential for the conservation of the species; and
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change.
    (2) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (3) Any probable economic, national security, or other relevant 
impacts of designating any area that may be

[[Page 94658]]

included in the final designation, and the related benefits of 
including or excluding specific areas.
    (4) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and any additional information 
regarding probable economic impacts that we should consider.
    (5) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. In particular, we are considering excluding 
all Tribal lands (in Montana and New Mexico) as well as lands in (a) 
Montana, managed in accordance with the Montana Department of Natural 
Resources and Conservation (DNRC) Forested State Trust Lands Habitat 
Conservation Plan (Montana DNRC and U.S. Fish and Wildlife Service 
2010, entire), and (b) Washington, managed in accordance with the 
Washington Department of Natural Resources (DNR) Lynx Habitat 
Management Plan for DNR-managed Lands (Washington DNR 2006, entire). If 
you think we should exclude any additional areas, please provide 
information supporting a benefit of exclusion.
    (6) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), our final designation may not include all areas 
proposed, may include some additional areas that meet the definition of 
critical habitat, or may exclude some areas if we find the benefits of 
exclusion outweigh the benefits of inclusion and exclusion will not 
result in the extinction of the species. In our final rule, we will 
clearly explain our rationale and the basis for our final decision, 
including why we made changes, if any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    The Service listed the Canada lynx DPS as a threatened species 
under the Act in 2000 (65 FR 16052, March 24, 2000). The Service first 
designated Canada lynx critical habitat in 2006 (71 FR 66008, November 
9, 2006), revised the designation in 2009 (74 FR 8616, February 25, 
2009), and revised critical habitat again in 2014 (79 FR 54782, 
September 12, 2014). The 2014 designation was challenged and in 2016 
the District Court for the District of Montana held that the Service 
erred by excluding Colorado and five National Forests in Montana and 
Idaho from the critical habitat designation, WildEarth Guardians v. 
U.S. Department of the Interior, 205 F. Supp.3d 1176 (D. Mont. 2016). 
The court remanded the critical habitat designation to the Service to 
reconsider. In 2017, we completed the species status assessment (SSA) 
report to summarize the best available scientific information on the 
status and likely future viability of the Canada lynx DPS (Service 
2017a, entire). The SSA provided the scientific basis for a 5-year 
review completed on November 13, 2017, in which we recommended removing 
the Canada lynx DPS from the Federal List of Endangered and Threatened 
Wildlife (Service 2017b, entire). Given this recommendation, on 
December 20, 2017, we issued a memorandum on our section 4(f)(1) 
determination regarding recovery planning for the Canada lynx that 
found a recovery plan will not promote the conservation of the species 
(Service 2017c, entire).
    In 2020, the Service was challenged for its failure to revise 
Canada lynx critical habitat in accordance with the 2016 court order. 
The Service reached a settlement agreement for the date it would comply 
with the 2016 court order. On April 25, 2022, the court ordered the 
Service to submit a proposed revised critical habitat rule for the 
Canada lynx DPS to the Federal Register by November 21, 2024, and a 
final critical habitat rule within the statutory timeframe in 
accordance with the settlement agreement.
    On December 1, 2023, the Service completed and released an addendum 
to the SSA report (Service 2023a, entire), to inform recovery planning 
and critical habitat revision. We published a notice of availability of 
the draft recovery plan and made it available for public comment on 
December 1, 2023.
    For more information on previous Federal actions concerning the 
Canada lynx DPS, refer to the final listing rule published in the 
Federal Register on March 24, 2000 (65 FR 16052); the clarification of 
findings published in the Federal Register on July 3, 2003 (68 FR 
40076); the Recovery Outline for the Contiguous United States DPS of 
Canada Lynx (recovery outline; Service

[[Page 94659]]

2005, entire); the final rule designating critical habitat for Canada 
lynx published in the Federal Register on November 9, 2006 (71 FR 
66008); the final rule designating revised critical habitat published 
in the Federal Register on February 25, 2009 (74 FR 8616); the 12-month 
finding on a petition to change the final listing of the DPS of the 
Canada lynx to include New Mexico published in the Federal Register on 
December 17, 2009 (74 FR 66937); the proposed rule to revise the 
designation of critical habitat and the boundary for the Canada lynx 
DPS published in the Federal Register on September 26, 2013 (78 FR 
59430); and the final rule designating revised critical habitat for 
Canada lynx published in the Federal Register on September 12, 2014 (79 
FR 54782). These documents and others addressing the status and 
conservation of the Canada lynx in the contiguous United States may be 
viewed and downloaded from the Service's website: https://ecos.fws.gov/ecp/species/A073?.

Peer Review

    On December 1, 2023, a team of Service biologists, in consultation 
with recognized lynx and climate experts, completed an addendum to the 
2017 SSA for the Canada lynx DPS. The SSA report and addendum represent 
a compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing and recovery actions under the Act, we solicited independent 
scientific review of the information contained in the Canada lynx SSA 
report addendum. We sent the SSA report addendum to five independent 
peer reviewers and received five responses. Results of this structured 
peer review process can be found at https://www.regulations.gov. In 
preparing this proposed rule, we incorporated the results of these 
reviews, as appropriate, into the SSA report addendum, which is the 
foundation for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from five 
peer reviewers on the draft SSA report addendum. We reviewed all 
comments we received from the peer reviewers for substantive issues and 
new information regarding the contents of the SSA report addendum. The 
peer reviewers generally concurred with our methods and conclusions. 
The peer reviewers provided additional information, terminology 
clarifications, suggestions to explain uncertainties, clarifications to 
the explanation of our resiliency model, and other editorial 
suggestions. Peer reviewer comments and suggestions were incorporated 
as appropriate in the final version of the SSA report addendum (Service 
2023a, entire).

Critical Habitat

Background

    Critical habitat is defined in section 3(5)(A) of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of designated critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation also does not allow the government or public to access 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.

[[Page 94660]]

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific data available. Further, 
our Policy on Information Standards Under the Endangered Species Act 
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information compiled in the SSA report and information developed during 
the listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. These protections and conservation tools will continue 
to contribute to recovery of the species. Similarly, critical habitat 
designations made on the basis of the best scientific data available at 
the time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of those planning efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or absence of a particular level 
of nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Species Needs, Habitat, Ecological Requirements

    A comprehensive review of the species description, biology, 
taxonomy, genetics, life history, ecology, distribution, species needs, 
habitat, and ecological requirements of the Canada lynx DPS is 
presented in the SSA report (Service 2017a, entire) and SSA report 
addendum (Service 2023a, entire). Here we present a summary of 
information relevant to the physical and biological features essential 
to the conservation of the species.
    The Canada lynx (hereafter referred to as lynx) is a North American 
wild cat that is most strongly associated with northern-latitude boreal 
forests (taiga) of Canada and Alaska (McCord and Cardoza 1982, p. 729; 
Agee 2000, pp. 39-41; Aubry et al. 2000, pp. 373-374; Mowat et al. 
2000, p. 272). The southern peripheries of the boreal forest and lynx 
range extend into the northern contiguous United States (Service 2017a, 
pp. 11-12). The Canada lynx is a medium-sized cat with long legs and 
large, well-furred paws, which make it well-adapted for traversing and 
hunting in deep, powdery snow. Its low foot-loading (weight per surface 
area of foot) is thought to provide a competitive advantage (Buskirk et 
al. 2000a, p. 90; Buskirk et al. 2000b, p. 400; Interagency Lynx 
Biology Team (ILBT) 2013, pp. 26, 36, 81) over other terrestrial 
predators of snowshoe hares, the lynx's primary prey.
    Lynx rely heavily on snowshoe hare to support survival, 
reproduction, recruitment, and, therefore, population persistence 
(Ruggiero et al. 2000a, p. 110; Mowat et al. 2000, p. 270; Steury and 
Murray 2004, pp. 128, 136-138; Service 2005, p. 2; ILBT 2013, p. 30-34; 
79 FR 54782, September 12, 2014). All aspects of lynx life history are 
inextricably tied to the snowshoe hare, which comprises most of the 
lynx diet throughout its range (Nellis et al. 1972, pp. 323-325; Brand 
et al. 1976, pp. 422-

[[Page 94661]]

425; Koehler and Aubry 1994, pp. 75, 85; Apps 2000, pp. 358-359, 363; 
Aubry et al. 2000, pp. 375-378; Mowat et al. 2000, pp. 267-268), 
including the DPS (Koehler 1990, p. 848; von Kienast 2003, pp. 37-38; 
Squires et al. 2004, p. 15, table 8; Moen 2009, p. 7; Vashon et al. 
2012, p. 11; Olson 2015, pp. 60-69; Ivan and Shenk 2016, p. 1053). 
Being highly specialized hare predators, lynx require landscapes that 
consistently support relatively high hare densities (McCord and Cardoza 
1982, p. 744; Quinn and Parker 1987, pp. 684-685; Aubry et al. 2000, 
pp. 375-378).
    The best available science, including recent research in the DPS' 
range, suggests that landscape-level hare densities consistently >= 0.5 
hares/hectare (ha) (0.2 hares/acre (ac)) and favorable snow conditions 
(deep and persistent unconsolidated (``fluffy'') snow) for about 4 
months per year are needed to support lynx occupancy, reproduction, and 
recruitment (Hoving et al. 2005, p. 749; Gonzalez et al. 2007, p. 7; 
Squires and Ruggiero 2007, pp. 313-314; Moen et al. 2012, pp. 352-354; 
Simons-Legaard et al. 2013, pp. 567, 574-575). At the southern 
periphery of lynx distribution, some places, including within the range 
of the DPS, seem to be at minimum thresholds to meet these requirements 
or do so inconsistently.
    Lynx and snowshoe hares are strongly associated with moist boreal 
forests, where winters are long, cold, and snowy (Bittner and Rongstad 
1982, p. 154; McCord and Cardoza 1982, p. 743; Quinn and Parker 1987, 
pp. 684-685; Agee 2000, pp. 39-47; Aubry et al. 2000, pp. 373-382; 
Hodges 2000a, pp. 183-191; Hodges 2000b, pp. 136-140; McKelvey et al. 
2000a, pp. 211-232). The predominant vegetation of boreal forest is 
conifer trees, primarily species of spruce (Picea spp.) and fir (Abies 
spp; Elliot-Fisk 1988, pp. 34-35, 37-42). Snowshoe hares feed on 
conifers, deciduous trees, and shrubs (Hodges 2000a, pp. 181-183) and 
are most abundant in forests with dense understories that provide 
forage, cover to escape from predators, and protection during extreme 
weather (Wolfe et al. 1982, pp. 665-669; Litvaitis et al. 1985, pp. 
869-872; Hodges 2000a, pp. 183-195; Hodges 2000b, pp. 136-140). Lynx 
population dynamics, survival, and reproduction are closely tied to 
snowshoe hare availability, making snowshoe hare habitat the primary 
component of lynx habitat.
    Lynx distribution and population persistence are also influenced by 
snow conditions (Peers et al. 2012, pp. 4-9). The species is generally 
restricted to areas that receive deep and persistent unconsolidated 
(``fluffy'') snow, which is thought to allow lynx, with their 
proportionately longer limbs and very large feet, to outcompete other 
terrestrial hare predators that are less efficient in such conditions 
(McCord and Cardoza 1982, pp. 748-749; Quinn and Parker 1987, p. 684; 
Buskirk et al. 2000a, pp. 89-94; Buskirk et al. 2000b, pp. 400-401; 
Ruggiero et al. 2000b, pp. 445-449; Hoving 2001, p. 75; Hoving et al. 
2005, pp. 744-749; Carroll 2007, entire; Gonzalez et al. 2007, entire; 
ILBT 2013, pp. 25-26; 79 FR 54782, September 12, 2014). The lynx's 
physical adaptations are thought to provide the lynx a seasonal 
advantage over potential terrestrial competitors and predators, which 
generally have higher foot-loading, causing them to sink into the snow 
more than the lynx (McCord and Cardoza 1982, p. 748; Murray and Boutin 
1991, entire; Buskirk et al. 2000a, pp. 86-95; Ruediger et al. 2000, 
pp. 1-11; Ruggiero et al. 2000b, pp. 445, 450).
    Buskirk et al. (2000a, entire) described potential exploitation 
(for food) and interference (avoidance) competition between lynx and 
other terrestrial and avian predators of hares, several of which have 
also been documented to prey on lynx. Coyotes (Canis latrans) were 
thought most likely to exert local or regionally important exploitation 
competition impacts to lynx (Buskirk et al. 2000a, p. 89). However, 
subsequent research showed little evidence of meaningful competition 
for hares between lynx and coyotes in winter (Kolbe et al. 2007, p. 
1416; Dowd and Gese 2012, entire; Guillaumet et al. 2015, pp. 141-144), 
and evidence of competition with, and displacement of lynx by, bobcats 
(Lynx rufus) (Robinson 2006, pp. 120-129; Peers et al. 2012, pp. 4-9; 
Peers et al. 2013, entire; Sir[eacute]n et al. 2021, p. 1768; 
Sir[eacute]n et al. 2022, pp. 761-762). Coyotes, bobcats, and cougars 
(Puma concolor; also mountain lion) are capable of imparting 
interference competition (i.e., aggressive encounters) effects on lynx 
(Buskirk et al. 2000a, p. 89; Scully et al. 2018, pp. 765-766; King et 
al. 2020, p. 338). Interference would most likely be during summer but 
could also occur during winter in areas lacking deep, unconsolidated 
snow (ILBT 2013, p. 36).
    Individual lynx require large landscapes with hare densities that 
maximize their chances of (1) surviving from birth to independence, (2) 
establishing and maintaining a home range, (3) breeding successfully, 
and (4) contributing genes to future generations (Breitenmoser et al. 
1993, p. 552). These landscapes also must provide conditions that allow 
lynx to compete sufficiently for hares and minimize the likelihood of 
predation and other sources of lynx mortality.
    Lynx populations need large (thousands of square kilometers) boreal 
forest landscapes with hare densities capable of supporting (1) 
multiple lynx home ranges, (2) reproduction and recruitment most years, 
and (3) at least some survival even during years when hare numbers are 
low. Lynx populations estimated at fewer than 25 individuals or 
occupying habitat areas too small (<483 mi\2\ (1,250 km\2\)) to support 
at least 25 individual lynx are considered ``not resilient/functionally 
extirpated'' because populations that small are unlikely to persist 
over time (Service 2023a, p. 50-51). Large boreal forest landscapes 
also must have snow conditions (consistency, depth, and duration) that 
allow lynx to outcompete other terrestrial hare predators. To persist, 
lynx populations must exhibit recruitment and immigration rates that 
equal or exceed mortality and emigration rates on average over the long 
term. Immigration may be particularly important to the persistence and 
stability of lynx populations at the southern periphery of the range, 
including those within the DPS, where hare densities are generally low 
and hare populations are either non-cyclic or weakly-cyclic compared to 
northern populations. Low hare densities reduce the likelihood that 
lynx recruitment will consistently equal or exceed mortality. Non-
cyclic or weakly-cyclic hare populations are unlikely to allow the 
rapid lynx population recovery observed in northern lynx populations 
outside of the DPS when hare numbers increase dramatically after cyclic 
population crashes. Conversely, more stable hare populations, even at 
lower landscape-level densities, likely provide stability (i.e., 
prevent periodic steep declines) among lynx populations on the 
periphery of the range in the DPS and in southern Canada. Although 
immigration rates for DPS populations are unknown, as is the rate and 
periodicity of immigration needed to provide demographic stability 
among them, connectivity with and immigration from lynx populations in 
Canada are believed to be important to the persistence of lynx 
populations in the DPS (McKelvey et al. 2000a, pp. 232-242; McKelvey et 
al. 2000b, pp. 32-34; Schwartz et al. 2002, entire; Service 2005, p. 2; 
ILBT 2013, pp. 34, 42, 47, 54, 60, 65; Squires et al. 2013, p. 187; 79 
FR 54782, September 12, 2014).

[[Page 94662]]

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Canada lynx from studies of the species' habitat, 
ecology, and life history as described below. Additional information 
can be found in the 2014 final critical habitat rule (79 FR 54782, 
September 12, 2014), the 2017 SSA report (Service 2017a, entire), and 
the SSA report addendum (Service 2023a, entire); available on https://www.regulations.gov under Docket No. FWS-R6-ES-2024-0142.
    We have determined that the following physical or biological 
features are essential to the conservation of the Canada lynx DPS:
    (1) Snowshoe hare densities adequate to support lynx residency and 
reproduction over time, distributed across large landscapes.
    (2) A mosaic of boreal/subalpine forest at variable forest 
structural stages, the majority of which provide year-round dense 
horizontal cover at ground or snow level.
    (3) Winter conditions that provide and maintain deep fluffy snow 
for extended periods of time.
    (4) Suitable habitat large enough (483 mi\2\ (>=1,250 km\2\)) to 
support breeding populations.
    (5) Permeable landscapes conducive to within-unit lynx daily 
movements and dispersal.
    We note here that the 2014 critical habitat rule included a 
discussion of primary constituent elements (PCEs) essential to the 
conservation of the species (79 FR 54782 at 54811, September 12, 2014). 
The Service no longer uses PCEs to define critical habitat; rather, we 
now evaluate and describe the physical or biological features that are 
essential to the conservation of the species in accordance with the 
definitions in the Act and our implementing regulations at 50 CFR 
424.12(b). We have identified the physical or biological features in 
this revised proposed critical habitat rule for the Canada lynx DPS in 
the Western United States. The analysis provided in the 2014 critical 
habitat rule in support of critical habitat Units 1 (Maine) and 2 
(Minnesota), including the description of PCEs, still applies to those 
units that are not subject to this revision. Even though the eastern 
critical habitat units are based on PCEs, those PCEs are biologically 
very similar to the physical and biological features used in this 
proposed rule.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following threats: climate change; vegetation management; wildland 
fire management; and habitat loss/fragmentation through development, 
roads, and mining (ILBT 2013, pp. 68-78; Service 2017a, pp. 51-105). A 
detailed discussion of activities influencing the Canada lynx DPS and 
its habitat can be found in the SSA report (Service 2017a, pp. 51-105) 
and SSA report addendum (Service 2023a, pp. 31-46).
    Since the DPS was listed in 2000, nearly all Federal forest plans 
and resource management plans throughout the DPS range have been 
revised in coordination with the Service and the lynx research 
community to include science-based measures and management practices 
consistent with lynx conservation, thereby greatly reducing the 
potential for population-scale habitat deterioration on Federal lands. 
These efforts have contributed significantly to addressing the threat 
for which the DPS was listed--the inadequacy, at that time, of 
regulatory mechanisms in U.S. Forest Service (USFS) and Bureau of Land 
Management (BLM) land and resource management plans. Additionally, 
Federal partners continue to incorporate the best available science 
into lynx habitat management practices on Federal lands. However, in 
the future, climate change-related impacts have the potential to reduce 
lynx and snowshoe hare habitat within the DPS. Special management 
considerations or protection that may be required within critical 
habitat areas to address these threats include (but are not limited to) 
the following: maintaining high-quality lynx habitat and potential 
climate refugia; maintaining boreal forest vegetation communities that 
support high densities of snowshoe hares and resident lynx breeding 
populations; supporting connectivity between DPS populations; 
implementation of forest management practices that prevent or reduce 
risk of catastrophic wildfire; reducing indirect impacts to habitat 
from activities adjacent to critical habitat units; and minimizing 
habitat disturbance, fragmentation, and destruction through use of best 
management practices for vegetation management activities.

Conservation Strategy and Selection Criteria Used To Identify Critical 
Habitat

Conservation Strategy

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. The occupied areas identified 
encompass the varying habitat types and distribution of the species and 
provide sufficient habitat to allow for maintaining the populations. We 
are not currently proposing to designate any areas outside the 
geographical area occupied by the species at the time of listing 
because we have not identified any unoccupied areas that meet the 
definition of critical habitat. Designating areas outside the 
geographical area occupied by the species at the time of listing would 
not improve the likelihood of recovery (the point at which the 
protections of the Act are no longer necessary and delisting the DPS 
would be appropriate). We do not find that the DPS can only be 
conserved and recovered if we were to designate areas not occupied at 
the time of listing. Because these areas are not essential for the 
conservation and recovery of the DPS, designating them would not comply 
with the Act.
    We developed a conservation strategy for the Canada lynx DPS to 
determine and select appropriate areas occupied at the time of listing 
that contain the physical or biological features essential to the 
conservation of the species. The goal of our conservation strategy for 
lynx is to recover the DPS to the point where the protections of the 
Act are no longer necessary. The role of critical habitat in achieving 
this conservation goal is to identify the specific areas within the 
range of the Canada lynx DPS that provide the essential physical and 
biological features without which the species' range-wide resiliency, 
redundancy, and representation would be insufficient to achieve 
recovery. This, in turn, requires an understanding of the fundamental 
parameters of Canada lynx

[[Page 94663]]

biology and ecology based on well-accepted conservation-biology and 
ecological principles for conserving species and their habitats, such 
as those described in the 2017 SSA report (Service 2017a, entire), the 
2023 SSA report addendum (Service 2023a, entire), and the 2023 draft 
recovery plan for the Canada lynx (Service 2023b, entire).
    The conservation strategy is the outline for the long-term 
viability of the Canada lynx DPS. In developing our conservation 
strategy, we focused on maintaining sufficient representation and 
redundancy within the DPS by maintaining or improving the resiliency of 
lynx populations and conserving their habitats. The conservation 
strategy includes the following:
    (1) Maintenance or improvement of the current resiliency of the 
five breeding lynx populations (Maine, Minnesota, North Cascades, 
Northern Rocky Mountains, Southern Rocky Mountains) to preserve the 
redundancy and representation of the DPS.
    (2) Identification and conservation of high-quality lynx habitat 
and potential climate refugia within the previously mentioned five 
areas and the Greater Yellowstone Area (GYA).
    (3) Continued implementation and refinement of regulatory 
mechanisms and other conservation measures that incorporate the best 
available science to ensure the conservation of lynx habitats and 
populations.
    (4) Populations distributed across the three large representative 
units in the DPS range (Northeast, Midwest, and West), and habitat 
that:
    (a) Supports high or moderate-resiliency, resident lynx breeding 
populations.
    (b) Supports connectivity between DPS populations and the core of 
the species' range in Canada.
    (c) Provides the climatic conditions that support resident 
populations.
    (d) Provides the boreal forest vegetation communities that support 
high densities of snowshoe hares and resident lynx breeding 
populations.
    (e) Is potentially capable of providing climate refugia.

Criteria Used To Identify Critical Habitat

    In previous critical habitat designations, we identified lynx 
habitat using expert judgement of vegetation and habitat types and 
elevation thresholds. For the Western United States, we now have new, 
state-of-the-art models of lynx habitat (Olson et al. 2021, entire; 
Squires et al., in review) based on the best empirical data of lynx 
locations across the Western United States. The models accurately map 
environmental covariates (abiotic and biotic features) found at lynx 
locations, as compared to a random sample of background locations, 
within and outside of known home ranges. These models were built using 
data from thousands of verified fine-scale global positioning system 
(GPS) locations of radio-marked resident lynx in Montana, Washington, 
Wyoming, and Colorado. Additionally the models were tested and verified 
using location data withheld from building the models and incidental 
lynx occurrence data that included locations within home ranges and 
locations outside of home ranges. The models cover the western extent 
of the Canada lynx DPS range and indicate the relative likelihood of 
lynx presence in Washington, Idaho, western Montana, northwestern and 
south-central Wyoming, northeastern Utah, western Colorado, and 
northern New Mexico.
    These models and the use of them to identify high-quality lynx 
habitat were documented in the 2022 interagency Western Lynx Biology 
Team (WLBT) report (WLBT 2022, entire). The WLBT included species 
experts from the Service, USFS, and BLM, as well as scientists from the 
U.S. Department of Agriculture Rocky Mountain Research Station who led 
the development of the new habitat models. The WLBT framework also 
underwent formal peer review. The interagency team used a science-based 
approach to identify key habitat areas from the models and developed a 
tiered approach to model outputs by evaluating the extent and 
proportion of modeled high-quality habitat.
    The WLBT used the models to identify areas of high conservation 
value for lynx where high-quality habitat is abundant, and further 
assigned those areas into three tiers. Tier 1 polygons provide large 
and well-connected areas with high proportions of high-quality habitat, 
and support long-term lynx occupancy and reproduction. Tier 2 polygons 
contain lower proportions of high-quality habitat, and they provide 
habitat for expansion or redundant habitat areas. In tier 2, the 
objective is to provide habitat to support periodic to regular 
occupancy, which may include reproductively successful individuals at 
times. Tier 3 areas are generally smaller islands of habitat that may 
function as ``stepping stones'' for dispersing lynx; these areas may be 
important to maintain connectivity and facilitate dispersal across the 
landscape and among tiers.
    The WLBT mapping effort and underlying species distribution models 
identify habitat with the climatic and vegetation characteristics 
necessary to support lynx residency and reproduction. This includes 
boreal and subalpine forested habitats with a mosaic of variable forest 
successional and structural stages, dense horizontal cover, persistent 
snow, and moderate to high snowshoe hare densities. To inform our 
delineation of revised critical habitat in the Western United States, 
the Service used the tier 1 habitat described by the WLBT. When 
designating critical habitat, we are not required to designate all 
areas where a species occurs. We chose to focus on tier 1 polygons 
because these are the areas that have at least 50 percent of the 
polygon in the highest quality habitat. Tier 1 habitat is the most 
valuable to long-term lynx occupancy and reproduction and sufficient to 
provide for the conservation of the Canada lynx DPS. We did not use 
tier 2 or 3 polygons, as those areas have lower proportions of high-
quality lynx habitat, such that they are not likely to support long-
term occupancy and reproduction. We identified tier 1 polygons that 
exceeded or were in close proximity to other polygons that exceeded 
1,250 contiguous km\2\ (483 mi\2\) of high-quality habitat as the areas 
on the landscape that contain the physical and biological features 
essential to the conservation of the Canada lynx DPS.
    In summary, for areas within the geographical area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria and methodology. We mapped all 
WLBT tier 1 polygons in the Cascades, Northern Rocky Mountains, and 
Southern Rocky Mountains. These polygons were then reviewed by Service 
biologists, using the best available information, to ensure that all 
polygons have the physical and biological features essential to Canada 
lynx. These features include (1) snowshoe hare densities adequate to 
support lynx residency and reproduction over time, distributed across 
large landscapes; (2) a mosaic of boreal/subalpine forest at variable 
forest structural stages, the majority of which provide year-round 
dense horizontal cover at ground or snow level; (3) winter conditions 
that provide and maintain deep fluffy snow for extended periods of 
time; (4) suitable habitat large enough (483 mi\2\ (>=1,250 km\2\)) to 
support breeding populations; (5) permeable landscapes conducive to 
within-unit lynx daily movements and dispersal.
    We then removed any isolated polygons not occupied at the time of 
listing and smaller than 483 mi\2\ (>=1,250 km\2\), which is the 
minimum area

[[Page 94664]]

thought necessary to support a resilient lynx population as identified 
in the SSA report addendum (Service 2023a, pp. 50-51).
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for lynx. The scale of the 
maps we prepared under the parameters for publication within the Code 
of Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat is finalized as 
proposed, a Federal action involving these lands would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document.

Proposed Critical Habitat Designation

    Critical habitat was last designated for the Canada lynx DPS in 
2014 and included five units in the contiguous United States (79 FR 
54782, September 12, 2014). We are proposing to revise critical habitat 
for the Canada lynx in the Western United States. Existing critical 
habitat units 1 (Maine) and 2 (Minnesota) are not included in this 
proposed revision to lynx critical habitat and remain in place as 
described in the 2014 critical habitat final rule. The critical habitat 
areas we describe below constitute our current best assessment of areas 
that meet the definition of critical habitat for lynx in the Western 
United States. The four areas we propose as critical habitat are: (1) 
Unit 3: Northern Rockies; (2) Unit 4: North Cascades; (3) Unit 5: 
Greater Yellowstone Area (GYA); and (4) Unit 6: Southern Rockies. Table 
1, below, shows the proposed critical habitat units and the approximate 
area of each unit. All units were occupied at the time of listing in 
2000. Table 1 lists the proposed critical habitat units and their 
approximate sizes broken down by major land ownership.

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

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

Unit 3: Northern Rockies

    Unit 3 consists of 7,959 mi\2\ (20,613 km\2\) located in 
northwestern Montana in portions of Flathead, Glacier, Granite, Lake, 
Lewis and Clark, Lincoln, Mineral, Missoula, Pondera, Powell, Ravalli, 
and Teton Counties and northern and east-central Idaho in portions of 
Bonner, Boundary, Clearwater, and Idaho Counties. The current proposal 
represents a 1,808-mi\2\ (4,683-km\2\) reduction in the 2014 
designation for this unit, although it includes new areas of proposed 
critical habitat in northern Idaho and along the central Idaho-Montana 
border. This unit was occupied by lynx at the time of listing and is 
currently occupied by the species. Lynx are known to be widely 
distributed throughout this unit and breeding has been documented in 
multiple locations. This unit supports a resident population thought by 
lynx researchers to number between 200 and 300 lynx (Lynx SSA Team 
2016, p. 41). This unit is directly connected to lynx habitats and 
populations in southwestern Alberta and southeastern British Columbia, 
Canada. Lynx in this unit represent the southern extent of a larger 
cross-border population, most of which occurs in Western Canada.
    Land ownership within the unit is 90 percent Federal, 4 percent 
State, 3 percent Tribal, and 3 percent private. Federal lands in this 
unit include National Forest System lands within the Kootenai, 
Flathead, Lolo, and Helena-Lewis and Clark National Forests in Montana 
and the Idaho Panhandle National Forest and the Clearwater portion of 
the Nez Perce-Clearwater National Forest in Idaho; National Park 
Service lands in Glacier National Park; and BLM lands in the Garnet 
Resource Area. State lands in this unit include areas managed by the 
Montana Department of Natural Resources and Conservation; Montana Fish, 
Wildlife, and Parks; and the Idaho Department of Lands. Tribal lands 
within this unit include parts of the Confederated Salish and Kootenai 
Tribes Flathead Reservation and the Blackfeet Reservation, both in 
Montana. State and Tribal lands in this unit are included in the 
proposed critical habitat designation but will be considered for 
exclusion in accordance with section 4(b)(2) of the Act and some or all 
may be excluded from the final designation.
    The physical or biological features essential to the conservation 
of the Canada lynx in this unit may require special management 
considerations or protection to address activities that may result in 
removal or reduction of boreal/subalpine forest conditions that support 
Canada lynx and snowshoe hares. Such activities may include, but are 
not limited to road construction and maintenance, and commercial, 
recreational, and energy/mineral development, when they remove or 
reduce boreal forest in a manner that impacts snowshoe hare densities, 
the size of suitable habitat patches to support breeding lynx 
populations, and permeability of landscapes for lynx daily movements 
and dispersal in this unit. Climate change is expected to negatively 
impact the duration of deep fluffy snow conditions favorable to lynx in 
this unit over time.

[[Page 94665]]

Unit 4: North Cascades

    Unit 4 consists of 2,354 mi\2\ (6,097 km\2\) located in north-
central Washington in portions of northern Chelan, Okanogan, and 
eastern Skagit and Whatcom Counties. The current proposal represents a 
520-mi\2\ (1,346-km\2\) increase from the 2014 designation for this 
unit. This unit was occupied by lynx at the time of listing and is 
currently occupied by the species. Lynx are known to be distributed 
throughout much of this unit and breeding has been documented. The 
Service estimates that this unit is potentially capable of supporting a 
resident population of 90-120 lynx, but extensive large wildfires in 
roughly half of lynx habitat over the past 15-20 years are thought to 
have reduced its carrying capacity commensurately (but perhaps 
temporarily). Nonetheless, a systematic lynx DNA collection effort 
between 2018 to 2023 documented 73 individual lynx in north central 
Washington (Akins and Ransom 2024, pers. comm.). This unit is directly 
connected to lynx habitats and populations in southern British 
Columbia, Canada, and lynx in this unit represent the southern extent 
of a larger cross-border population, most of which occurs in Western 
Canada.
    Land ownership within the unit is 93 percent Federal and 7 percent 
State, with small parcels of private lands that represent less than 
one-half of 1 percent of the unit. Federal lands include 1,732 mi\2\ 
(4,485 km\2\) within the Okanogan-Wenatchee National Forest and 117 
mi\2\ (303 km\2\) of North Cascades National Park. It also includes 39 
mi\2\ (100 km\2\) of State Forest lands within the Loomis Natural 
Resources Conservation Area, which is managed by the Washington 
Department of Natural Resources. We excluded these State Forest lands 
from previous critical habitat designations and will again consider 
them for exclusion under section 4(b)(2) of the Act.
    The physical or biological features essential to the conservation 
of the Canada lynx in this unit may require special management 
considerations or protection to address activities that may result in 
removal or reduction of boreal/subalpine forest conditions that support 
Canada lynx and snowshoe hares. Such activities may include, but are 
not limited to extensive, high-intensity wildfires, road construction 
and maintenance, and commercial, recreational, and energy/mineral 
development, when they remove or reduce boreal forest in a manner that 
impacts snowshoe hare densities, the size of suitable habitat patches 
to support breeding lynx populations, and permeability of landscapes 
for lynx daily movements and dispersal in this unit. Climate change is 
expected to negatively impact the duration of deep fluffy snow 
conditions favorable to lynx in this unit over time.

Unit 5: Greater Yellowstone Area

    Unit 5 consists of 1,121 mi\2\ (2,902 km\2\) located in west-
central and northwestern Wyoming in portions of Fremont, Lincoln, 
Sublette, and Teton Counties. The current proposal represents an 8,025-
mi\2\ (20,785-km\2\) reduction from the 2014 designation for this unit. 
Previous research documented very low snowshoe hare densities 
throughout much of the Greater Yellowstone Area (GYA) (Hodges et al. 
2009, entire), but with small pockets of habitat on the Bridger-Teton 
National Forest in the southern part of the GYA supporting high hare 
densities (Berg et al. 2012, p. 1483). Recent habitat modeling that is 
foundational to this critical habitat revision (Olson et al. 2021, 
entire) demonstrated that most of the GYA, including areas previously 
designated as lynx critical habitat, does not contain the physical and 
biological features necessary to support persistent lynx residency. 
This unit was occupied at the time of listing and occasional lynx 
occurrence has been documented since then. It is uncertain whether this 
unit historically supported a small resident population or if lynx 
presence and reproduction were and are naturally ephemeral and 
intermittent. The area currently does not appear to support a resident 
breeding population.
    Based on home range sizes and lynx densities estimated elsewhere in 
the western part of the DPS range (Montana, Washington, Colorado), the 
Service estimates that this unit could potentially support a population 
of 25-50 lynx if sufficient habitat conditions and hare densities could 
be achieved and maintained, and a resident lynx population is 
established via translocation. This unit is not directly connected to 
lynx habitats and populations elsewhere in the DPS range or in the core 
of the species' range in Western Canada. However, historical records 
suggest that dispersing lynx associated with cyclic irruptions of lynx 
from Canada into the northern contiguous United States occasionally 
reached the GYA (McKelvey et al. 2000a, pp. 229-230). Additionally, at 
least nine radio-marked lynx released in Colorado subsequently moved 
into or through the GYA unit in the period 1999-2010, with several 
establishing temporary residency in the area proposed for critical 
habitat designation (Ivan 2017, entire).
    Land ownership within the unit is more than 99 percent Federal and 
includes small (less than 4 mi\2\ (10 km\2\) parcels of private and 
State lands; there are no Tribal lands. Most of this unit occurs within 
the Bridger-Teton National Forest, with a smaller area in the Shoshone 
National Forest and several small parcels of BLM lands managed by the 
Kemmerer and Pinedale Field Offices.
    The physical or biological features essential to the conservation 
of the Canada lynx in this unit may require special management 
considerations or protection to address activities that may result in 
removal or reduction of boreal/subalpine forest conditions that support 
Canada lynx and snowshoe hares. Such activities may include, but are 
not limited to road construction and maintenance, and commercial, 
recreational, and energy/mineral development, when they remove or 
reduce boreal forest in a manner that impacts snowshoe hare densities, 
the size of suitable habitat patches to support breeding lynx 
populations, and permeability of landscapes for lynx daily movements 
and dispersal in this unit. Climate change is expected to negatively 
impact the duration of deep fluffy snow conditions favorable to lynx in 
this unit over time.

Unit 6: Southern Rockies

    Unit 6 consists of 7,679 mi\2\ (19,889 km\2\) located in west-
central and southwestern Colorado in portions of Archuleta, Boulder, 
Chaffee, Clear Creek, Conejos, Dolores, Eagle, Gilpin, Grand, Gunnison, 
Hinsdale, La Plata, Lake, Mineral, Montezuma, Montrose, Ouray, Park, 
Pitkin, Rio Grande, Saguache, San Juan, San Miguel, and Summit 
Counties, and northern New Mexico in portions of Rio Arriba County. 
Critical habitat was not previously designated in the Southern Rockies. 
At the time of listing, this unit was occupied by lynx translocated 
from Canada and Alaska and it is currently occupied by the descendants 
of those released lynx. It is uncertain whether this unit historically 
supported a resident population or if lynx presence was naturally 
ephemeral and intermittent.
    The area currently supports a resident breeding population that is 
the result of the State of Colorado's Canada Lynx Reintroduction 
Program, which included the 1999-2006 translocations of 218 lynx from 
Canada and Alaska into the San Juan Mountains in southwestern Colorado, 
with continued lynx occurrence and reproduction documented annually 
since then. Lynx researchers with Colorado Parks and

[[Page 94666]]

Wildlife estimate the current size of the population at 75-150 resident 
lynx. This unit is not directly connected to lynx habitats and 
populations elsewhere in the DPS range or in the core of the species' 
range in western Canada. However, historical records suggest that 
dispersing lynx associated with cyclic irruptions of lynx from Canada 
into the northern contiguous United States occasionally reached the 
Southern Rockies. Some of the lynx released into Colorado dispersed 
into surrounding States, with some traveling north into the GYA, 
Montana and Idaho.
    Land ownership within the unit is almost 89 percent Federal, almost 
9 percent private, 1 percent State, and less than 1 percent Tribal and 
local government. Most (96 percent of) Federal lands occur on national 
forests, including the Arapaho, Gunnison, Pike, Rio Grande, Roosevelt, 
San Isabel, San Juan, Uncompahgre, and White River National Forests in 
Colorado, and the Carson National Forest in New Mexico. The remaining 4 
percent of Federal lands occur on BLM lands, mostly those managed by 
the Gunnison Field Office with smaller parcels managed by the 
Kremmling, Royal Gorge, and Uncompahgre field offices, and smaller 
parcels of U.S. Fish and Wildlife Service and Bureau of Reclamation 
lands. Less than 1 percent of this unit includes Off-Reservation Tribal 
Trust lands of the Jicarilla Apache Nation in northern New Mexico. 
Tribal lands will be considered for exclusion in accordance with 
section 4(b)(2) of the Act and some or all may be excluded from the 
final designation. It also includes small parcels of State and local 
government lands which, combined, represent less than one-half of 1 
percent of the proposed critical habitat designation.
    The physical or biological features essential to the conservation 
of the Canada lynx in this unit may require special management 
considerations or protection to address activities that may result in 
removal or reduction of boreal/subalpine forest conditions that support 
Canada lynx and snowshoe hares. Such activities may include, but are 
not limited to road construction and maintenance, and commercial, 
recreational, and energy/mineral development, when they remove or 
reduce boreal forest in a manner that impacts snowshoe hare densities, 
the size of suitable habitat patches to support breeding lynx 
populations, and permeability of landscapes for lynx daily movements 
and dispersal in this unit. Climate change is expected to negatively 
impact the duration of deep fluffy snow conditions favorable to lynx in 
this unit over time.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they authorize, fund, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species (50 CFR 402.02).
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during formal consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate consultation. Reinitiation of consultation is 
required and shall be requested by the Federal agency, where 
discretionary Federal involvement or control over the action has been 
retained or is authorized by law and: (1) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (4) if a new species is listed or critical habitat 
designated that may be affected by the identified action. As provided 
in 50 CFR 402.16, the requirement to reinitiate consultations for new 
species listings or critical habitat designation does not apply to 
certain agency actions (e.g., land management plans issued by the BLM 
in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support physical or biological features 
essential to the conservation of a listed species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires that our Federal Register 
documents ``shall, to the maximum extent practicable also include a 
brief description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify [critical] habitat, or may be affected by such 
designation.'' Activities that may be affected by designation of 
critical habitat for the Canada lynx include those that may affect the 
physical or biological features of the Canada lynx' critical habitat 
(see Physical or Biological Features Essential to the Conservation of 
the Species).

[[Page 94667]]

Exemptions

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

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

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude any area from critical habitat if the benefits of 
exclusion outweigh those of inclusion, so long as exclusion will not 
result in extinction of the species concerned. Exclusion decisions are 
governed by the regulations at 50 CFR 424.19 and the Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act 
(hereafter, the ``2016 Policy''; 81 FR 7226, February 11, 2016), both 
of which were developed jointly with the National Marine Fisheries 
Service (NMFS). We also refer to a 2008 Department of the Interior 
Solicitor's opinion entitled ``The Secretary's Authority to Exclude 
Areas from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act'' (M-37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to make clear the rational 
basis for our decision. We describe below the process that we use for 
taking into consideration each category of impacts and any initial 
analyses of the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Order (E.O.) 12866 and E.O. 13563 direct Federal agencies 
to assess the costs and benefits of available regulatory alternatives 
in quantitative (to the extent feasible) and qualitative terms. 
Consistent with these E.O. regulatory analysis requirements, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly affected entities, where practicable and 
reasonable. If sufficient data are available, we assess to the extent 
practicable the probable impacts to both directly and indirectly 
affected entities. To determine whether the designation of critical 
habitat may have an economic effect of $200 million or more in any 
given year (which would trigger section 3(f)(1) of E.O. 12866, as 
amended by E.O. 14094), we used a screening analysis to assess whether 
a revised designation of critical habitat for the Canada lynx DPS is 
likely to exceed this threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Canada lynx DPS (Industrial Economics, Inc. 
(IEc) 2024, entire). We began by conducting a screening analysis of the 
proposed designation of critical habitat in order to focus our analysis 
on the key factors that are likely to result in incremental economic 
impacts. The purpose of the screening analysis is to filter out 
particular geographical areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes any probable incremental economic impacts where land and 
water use may already be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species. 
Ultimately, the screening analysis allows us to focus our analysis on 
evaluating the specific areas or sectors that may incur probable 
incremental economic impacts as a result of the designation.
    The presence of the listed species in occupied areas of critical 
habitat means that any destruction or adverse modification of those 
areas is also likely to jeopardize the continued existence of the 
species. Therefore, designating occupied areas as critical habitat

[[Page 94668]]

typically causes little if any incremental impacts above and beyond the 
impacts of listing the species. As a result, we generally focus the 
screening analysis on areas of unoccupied critical habitat (unoccupied 
units or unoccupied areas within occupied units).
    Overall, the screening analysis assesses whether designation of 
critical habitat is likely to result in any additional management or 
conservation efforts that may incur incremental economic impacts. This 
screening analysis combined with the information contained in our IEM 
constitute what we consider to be our economic analysis of the proposed 
critical habitat designation for the Canada lynx DPS and is summarized 
in the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the proposed critical habitat designations. In our 
evaluation of the probable incremental economic impacts that may result 
from the proposed designation of critical habitat for the Canada lynx, 
first we identified, in the IEM dated May 31, 2024, probable 
incremental economic impacts associated with the following categories 
of activities: (1) timber harvest; (2) silviculture; (3) wildfire 
response and management; (4) fuels reduction; (5) recreation 
management; (6) domestic livestock grazing; (7) infrastructure/
facilities maintenance/development; and (8) residential development/
construction. We considered each industry or category individually. 
Additionally, we considered whether their activities have any Federal 
involvement. Critical habitat designation generally will not affect 
activities that do not have any Federal involvement; under the Act, 
designation of critical habitat affects only activities conducted, 
funded, permitted, or authorized by Federal agencies. Because the 
species is listed, in areas where the Canada lynx is present, Federal 
agencies are required to consult with the Service under section 7 of 
the Act on activities they authorize, fund, or carry out that may 
affect the species. If when we finalize this proposed critical habitat 
designation, Federal agencies would be required to consider the effects 
of their actions on the designated habitat, and if the Federal action 
may affect critical habitat, our consultations would include an 
evaluation of measures to avoid the destruction or adverse modification 
of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Canada 
lynx's critical habitat. Because this species has been listed since 
2000 and critical habitat has been designated since 2006, we have a 
long consultation history to inform this distinction. The following 
specific circumstances in this case help to inform our evaluation: (1) 
The essential physical or biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would likely adversely affect the 
essential physical or biological features of occupied critical habitat 
are also likely to adversely affect the species itself. The IEM 
outlines our rationale concerning this limited distinction between 
baseline conservation efforts and incremental impacts of the revision 
and designation of critical habitat for this species. This evaluation 
of the incremental effects has been used as the basis to evaluate the 
probable incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed revised critical habitat designation for the Canada 
lynx DPS in the Western United States includes approximately 19,112 
mi\2\ (49,500 km\2\) in four occupied critical habitat units in 
Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming. This 
proposed revision results in an approximately 1,650-mi\2\ (4,274-km\2\) 
reduction from the 2014 critical habitat designation in the Western 
United States. Land ownership is approximately 91 percent Federal, 5 
percent private, 3 percent State, 1 percent Tribal, and less than 1 
percent other. This rule makes no updates to existing critical habitat 
in Maine and Minnesota; therefore, the economic analysis does not 
consider the effects of critical habitat in those States.
    The incremental effects of revising critical habitat for the Canada 
lynx are likely to be limited to changes in administrative effort to 
evaluate the potential for adverse modification of Canda lynx critical 
habitat. The entities most likely to incur incremental costs are 
parties to section 7 consultations, including Federal action agencies 
and, in some cases, third parties, most frequently State agencies or 
municipalities. This analysis finds that administrative costs and cost 
savings are on the order of $66,000 and $47,000 respectively, in a 
given year (2024 dollars). The expected net effect of revising critical 
habitat for the Canada lynx is a $19,000 increase in administrative 
costs per year. Thus, this analysis finds that despite a net reduction 
in the size of critical habitat for the species, the costs of critical 
habitat are expected to increase given the geographic representation of 
consultations across the new and removed areas. Incremental economic 
benefits and forgone benefits are not anticipated. Therefore, the rule 
is unlikely to meet the threshold for a significant rule as defined in 
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.
    This finding is based on several factors, including:
     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

[[Page 94669]]

4(b)(2), our implementing regulations at 50 CFR 424.19, and the 2016 
Policy. We may exclude an area from critical habitat if we determine 
that the benefits of excluding the area outweigh the benefits of 
including the area, provided the exclusion will not result in the 
extinction of this species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, we must still consider impacts on national security, including 
homeland security, on those lands or areas not covered by section 
4(a)(3)(B)(i) because section 4(b)(2) requires us to consider those 
impacts whenever it designates critical habitat. Accordingly, if DoD, 
Department of Homeland Security (DHS), or another Federal agency has 
requested exclusion based on an assertion of national-security or 
homeland-security concerns, or we have otherwise identified national-
security or homeland-security impacts from designating particular areas 
as critical habitat, we generally have reason to consider excluding 
those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the Canada lynx 
DPS are not owned or managed by the DoD or DHS, and, therefore, we 
anticipate no impact on national security or homeland security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are approved and permitted conservation 
agreements or plans covering the species in the area--such as safe 
harbor agreements (SHAs), candidate conservation agreements with 
assurances (CCAAs) or ``conservation benefit agreement'' or 
``conservation agreement'' (CBAs) (CBAs are a new type of agreement 
replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April 
12, 2024)) or HCPs, or whether there are non-permitted conservation 
agreements and partnerships that may be impaired by designation of, or 
exclusion from, critical habitat. In addition, we look at whether 
Tribal conservation plans or partnerships, Tribal resources, or 
government-to-government relationships of the United States with Tribal 
entities may be affected by the designation. We also consider any 
State, local, social, or other impacts that might occur because of the 
designation.
    When analyzing other relevant impacts of including a particular 
area in a designation of critical habitat, we weigh those impacts 
relative to the conservation value of the particular area. To determine 
the conservation value of designating a particular area, we consider a 
number of factors, including, but not limited to, the additional 
regulatory benefits that the area would receive due to the protection 
from destruction or adverse modification as a result of actions with a 
Federal nexus, the educational benefits of mapping essential habitat 
for recovery of the listed species, and any benefits that may result 
from a designation due to State or Federal laws that may apply to 
critical habitat.
    In the case of the Canada lynx, the benefits of critical habitat 
include public awareness of the presence of Canada lynx and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for Canada lynx due to protection from 
destruction or adverse modification of critical habitat. Continued 
implementation of an ongoing management plan that provides conservation 
equal to or more than the protections that result from a critical 
habitat designation would reduce those benefits of including that 
specific area in the critical habitat designation.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.

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

    As mentioned above, as part of our section 4(b)(2) analysis, we 
consider whether there are approved and permitted conservation 
agreements or plans covering the species in the area such as SHAs, 
CCAAs, CBAs or HCPs. Under sections 10(a)(1)(A) and 10(a)(1)(B) of the 
Act, non-Federal entities may develop these agreements or plans when 
they seek authorization for take that may otherwise be prohibited under 
section 9 through an enhancement of survival (EOS) or incidental take 
permit (ITP), respectively.
    Property owners seeking an EOS permit collaborate with the Service 
to develop a CBA to support the application. The EOS permit authorizes 
take associated with implementing the agreement and ongoing land 
management activities that provide a net conservation benefit to the 
covered

[[Page 94670]]

species. The CBA replaces two previous types of voluntary agreements 
(SHAs and CCAAs) going forward for new agreements after May 2024. 
However, permitted SHAs and CCAAs or those noticed in the Federal 
Register prior to May 2024 remain in effect.
    For incidental take permits issued under section 10(a)(1)(B) of the 
Act, applicants are required to develop a conservation plan, more 
commonly known as an HCP, to support their application. ITPs authorize 
take that is incidental to, but not the purpose of, carrying out 
otherwise lawful activities provided that the impact of the taking is 
minimized and mitigated to the maximum extent practicable.
    For both section 10(a)(1)(A) and 10(a)(1)(B) permits, we provide 
permittees with assurances. In the case of section 10(a)(1)(A) permits, 
we may not require additional or different conservation measures to be 
undertaken by a permittee without the consent of the permittee. In the 
case of section 10(a)(1)(B), we will not impose further land-, water-, 
or resource-use restrictions, or require additional commitments of 
land, water, or finances, beyond those agreed to in the HCP.
    We place great value on the partnerships that are developed during 
the preparation and implementation of conservation plans and 
agreements. In some cases, permittees agree to do more for the 
conservation of the species and their habitats on private lands than 
designation of critical habitat would provide alone.
    When we undertake a discretionary section 4(b)(2) exclusion 
analysis based on conservation plans or agreements, we anticipate 
consistently excluding such areas if incidental take caused by the 
activities in those areas is covered by the permit under section 10 of 
the Act and the plan meets all of the following three factors:
    a. The permittee is properly implementing the CCAA/SHA/HCP and is 
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully 
implementing the commitments and provisions in the CCAA/SHA/HCP, 
implementing agreement, and permit.
    b. The species for which critical habitat is being designated is a 
covered species in the CCAA/SHA/HCP, or very similar in its habitat 
requirements to a covered species. The recognition that the Services 
extend to such an agreement depends on the degree to which the 
conservation measures undertaken in the CCAA/SHA/HCP would also protect 
the habitat features of the similar species.
    c. The CCAA/SHA/HCP specifically addresses that species' habitat 
and meets the conservation needs of the species in the planning area.
    See the 2016 Policy for additional details. Because combining types 
of agreements such as SHAs and CCAAs into the term ``CBAs'' is a recent 
development (89 FR 26070; April 12, 2024), the 2016 Policy did not 
expressly reference CBAs. However, because CBAs replace CCAAs and SHAs 
moving forward we treat CBAs similarly to how we treat CCAAs/SHAs/HCPs 
described above.
    The proposed critical habitat designation includes areas that are 
covered by the following permitted plan providing for the conservation 
of the Canada lynx: Montana Department of Natural Resources and 
Conservation (DNRC) Forested State Trust Lands Habitat Conservation 
Plan. After considering the factors described above, we have identified 
159 mi\2\ (413 km\2\) that we have reason to consider excluding because 
of this permitted plan. We describe below our reasons for considering 
these areas for potential exclusion.
State of Montana Department of Natural Resources and Conservation 
Forested State Trust Lands Habitat Conservation Plan (DNRC HCP)
    The Montana DNRC multi-species HCP includes a lynx conservation 
strategy that minimizes impacts of forest management activities on 
lynx, complements lynx conservation objectives set forth in the States' 
comprehensive fish and wildlife conservation strategy (Montana 
Department of Fish, Wildlife and Parks 2005, entire), and describes 
conservation commitments that are based on recent information from lynx 
research in Montana (Montana DNRC and U.S. Fish and Wildlife Service 
2010, pp. 2-45-2-61). It also commits to active lynx monitoring and 
adaptive management programs (Montana DNRC and U.S. Fish and Wildlife 
Service 2010, pp. 4-27-4-37). The Montana DNRC worked closely with the 
Service in developing and completing a National Environmental Policy 
Act (NEPA) analysis on this multi-species HCP (Montana DNRC and U.S. 
Fish and Wildlife Service 2010, entire).
    In our biological opinion regarding potential impacts to lynx of 
implementation of this HCP, the Service concluded that the HCP promotes 
the conservation of lynx and their habitat through increased 
conservation commitments by [Montana] DNRC for forest management 
practices, maintenance of the habitat mosaic, structure, and components 
required to support lynx and their primary prey, the snowshoe hare, 
monitoring, and adaptive management (Service 2011, p. III-94). We 
determined that the proposed action is not likely to jeopardize the 
continued existence of Canada lynx within the contiguous U.S. DPS and 
that forest management activities managed under the conservation 
commitments of the DNRC HCP would not appreciably reduce the likelihood 
of survival and recovery of Canada lynx (Service 2011, p. III-94).
    In the previous final revised critical habitat designation, 
published in the Federal Register on September 12, 2014 (79 FR 54782), 
we determined that the benefits of excluding lands managed in 
accordance with the DNRC HCP outweighed the benefits of including them 
in the designation, and that doing so would not result in extinction of 
the species. We, therefore, again consider excluding 159 mi\2\ (413 
km\2\) of forested State Trust lands managed in accordance with the 
DNRC HCP from the revised lynx critical habitat designation in Unit 3. 
However, in the final rule, we will again weigh the benefits of 
inclusion versus exclusion of these lands in the final critical habitat 
designation.

Non-Permitted Conservation Plans, Agreements, or Partnerships

    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service.
    Shown below is a non-exhaustive list of factors that we consider in 
evaluating how non-permitted plans or agreements affect the benefits of 
inclusion or exclusion. These are not required elements of plans or 
agreements. Rather, they are some of the factors we may consider, and 
not all of these factors apply to every plan or agreement.
    (i) The degree to which the record of the plan, or information 
provided by proponents of an exclusion, supports a conclusion that a 
critical habitat designation would impair the

[[Page 94671]]

realization of the benefits expected from the plan, agreement, or 
partnership.
    (ii) The extent of public participation in the development of the 
conservation plan.
    (iii) The degree to which agency review and required determinations 
(e.g., State regulatory requirements) have been completed, as necessary 
and appropriate.
    (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) compliance was required.
    (v) The demonstrated implementation and success of the chosen 
mechanism.
    (vi) The degree to which the plan or agreement provides for the 
conservation of the essential physical or biological features for the 
species.
    (vii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    The proposed critical habitat designation includes areas that are 
covered by the following non-permitted plan providing for the 
conservation of the Canada lynx: State of Washington Department of 
Natural Resources (WDNR) Lynx Habitat Management Plan for DNR-managed 
Lands (WDNR LHMP). After considering the factors described above, we 
have identified 168 mi\2\ (435 km\2\) that we have reason to consider 
excluding because of this plan. We describe below our reasons for 
considering these areas for potential exclusion.
State of Washington Department of Natural Resources Lynx Habitat 
Management Plan for DNR-Managed Lands (WDNR LHMP)
    The WDNR LHMP encompasses 197 mi\2\ (510 km\2\) of WDNR-managed 
lands distributed throughout north-central and northeastern Washington 
in areas delineated as Lynx Management Zones in the Washington State 
Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-
13). Of the area covered by the plan, 168 mi\2\ (435 km\2\) overlaps 
the area proposed for designation as critical habitat. The WDNR LHMP 
was finalized in 2006 and is a revision of the lynx plan that WDNR 
began implementing in 1996. The 1996 plan was developed as a substitute 
for a species-specific critical habitat designation required by 
Washington Forest Practices rules in response to the lynx being State-
listed as threatened (Washington DNR 2006, p. 5). The 2006 WDNR LHMP 
provided further provisions to avoid the incidental take of lynx 
(Washington DNR 2006, p. 6). WDNR is committed to following the LHMP 
until 2076, or until the lynx is delisted (Washington DNR 2006, p. 6). 
WDNR requested that lands subject to the plan be excluded from previous 
critical habitat designation in 2014.
    The WDNR LHMP contains measures to guide WDNR in creating and 
preserving quality lynx habitat through its forest management 
activities. The objectives and strategies of the LHMP are developed for 
multiple planning scales (ecoprovince and ecodivision, lynx management 
zone, lynx analysis unit (LAU), and ecological community), and include:
    (1) Encouraging genetic integrity at the species level by 
preventing bottlenecks between British Columbia and Washington by 
limiting size and shape of temporary non-habitat along the border and 
maintaining major routes of dispersal between British Columbia and 
Washington;
    (2) Maintaining connectivity between subpopulations by maintaining 
dispersal routes between and within zones and arranging timber harvest 
activities that result in temporary non-habitat patches among 
watersheds so that connectivity is maintained within each zone;
    (3) Maintaining the integrity of requisite habitat types within 
individual home ranges by maintaining connectivity between and 
integrity within home ranges used by individuals and/or family groups; 
and
    (4) Providing a diversity of successional stages within each LAU 
and connecting denning sites and foraging sites with forested cover 
without isolating them with open areas by prolonging the persistence of 
snowshoe hare habitat and retaining coarse woody debris for denning 
sites (Washington DNR 2006, p. 29).
    The LHMP identifies specific guidelines to achieve the objectives 
and strategies at each scale; it also describes how WDNR will monitor 
and evaluate the implementation and effectiveness of the LHMP by 
providing implementation monitoring reports to the Service and 
Washington Department of Fish and Wildlife every 2 years (Washington 
DNR 2006, pp. 29-63).
    In both of the previous final revised critical habitat designations 
for lynx, published in the Federal Register on February 25, 2009 (74 FR 
8616) and September 12, 2014 (79 FR 54782), we determined that the 
benefits of excluding lands managed in accordance with the WDNR LHMP 
outweighed the benefits of including them in the designation, and that 
doing so would not result in extinction of the species. We again 
consider excluding 168 mi\2\ (435 km\2\) of lands managed in accordance 
with the WDNR LHMP from the revised lynx critical habitat designation. 
However, in the final rule, we will again weigh the benefits of 
inclusion versus exclusion of these lands in the final critical habitat 
designation.

Tribal Lands

    Several Executive Orders, Secretary's Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretary's Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS)-- Secretary's Order 3206, 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most 
comprehensive of the various guidance documents related to Tribal 
relationships and Act implementation, and it provides the most detail 
directly relevant to the designation of critical habitat. In addition 
to the general direction discussed above, the Appendix to S.O. 3206 
explicitly recognizes the right of Tribes to participate fully in any 
listing process that may affect Tribal rights or Tribal trust 
resources; this includes the designation of critical habitat. Section 
3(B)(4) of the Appendix requires the Service to consult with affected 
Tribes when considering the designation of critical habitat in an area 
that may impact Tribal trust resources, Tribally owned fee lands, or 
the exercise of Tribal rights. That provision also instructs the 
Service to avoid including Tribal lands within a critical habitat 
designation unless the area is essential to conserve a listed species, 
and it requires the Service to evaluate and document the extent to 
which the conservation needs of the listed species can be achieved by 
limiting the designation to other lands.
    Our implementing regulations at 50 CFR 424.19 and the 2016 Policy 
are consistent with S.O. 3206. When we undertake a discretionary 
exclusion analysis under section 4(b)(2) of the Act, in accordance with 
S.O. 3206, we consult with any Tribe whose Tribal trust resources, 
Tribally owned fee

[[Page 94672]]

lands, or Tribal rights may be affected by including any particular 
areas in the designation. We evaluate the extent to which the 
conservation needs of the species can be achieved by limiting the 
designation to other areas and give great weight to Tribal concerns in 
analyzing the benefits of exclusion.
    However, S.O. 3206 does not override the Act's statutory 
requirement of designation of critical habitat. As stated above, we 
must consult with any Tribe when a designation of critical habitat may 
affect Tribal lands or resources. The Act requires us to identify areas 
that meet the definition of ``critical habitat'' (i.e., areas occupied 
at the time of listing that contain the essential physical or 
biological features that may require special management considerations 
or protection and unoccupied areas that are essential to the 
conservation of a species), without regard to land ownership. While 
S.O. 3206 provides important direction, it expressly states that it 
does not modify the Secretaries' statutory authority under the Act or 
other statutes.
    The proposed critical habitat designation includes the following 
Tribal lands or resources: the Confederated Salish and Kootenai Tribes 
of the Flathead Indian Reservation in Montana (Unit 3), the Blackfeet 
Indian Reservation in Montana (Unit 3), and Jicarilla Apache Tribal 
Trust Lands in New Mexico (Unit 6).

Flathead Indian Reservation Lands

    In the previous final rules designating revised critical habitat 
for lynx, published in the Federal Register on February 25, 2009 (74 FR 
8616) and September 12, 2014 (79 FR 54782), we determined that the 
benefits of excluding Flathead Indian Reservation Lands outweighed the 
benefits of including them. We determined that exclusion of these 
Tribal lands from the designation of critical habitat for the lynx will 
not result in the extinction of the species because the Confederated 
Salish and Kootenai Tribes of the Flathead Nation implement programs 
for the conservation of the species, and physical and biological 
features essential to it, in occupied areas. The protections afforded 
to the lynx under the jeopardy standard will remain in place for the 
areas considered for exclusion from revised critical habitat. 
Therefore, and in light of Secretary's Order 3206 and Tribal management 
of lynx and their habitat, we are considering excluding 186 mi\2\ (482 
km\2\) of Flathead Indian Reservation Lands from the revised lynx 
critical habitat designation. However, in the final rule, we will again 
weigh the benefits of inclusion versus exclusion of these lands in the 
final critical habitat designation.

Blackfeet Indian Reservation Lands & Jicarilla Apache Tribal Trust 
Lands

    Approximately 44 mi\2\ (114 km\2\) of Blackfeet Indian Reservation 
Lands and 37 mi\2\ (97 km\2\) of Jicarilla Apache Tribal Trust lands 
overlaps the area proposed for designation as critical habitat for the 
Canada lynx in the Western United States. In light of Secretary's Order 
3206, we will consider these lands for exclusion from the final 
critical habitat designation. We will coordinate with these Tribes to 
evaluate any programs that are implemented for the conservation of the 
species, and physical and biological features essential to it, in 
occupied areas on Tribal lands. We will weigh the benefits of inclusion 
versus exclusion of these lands in the final critical habitat 
designation.

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

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

                Table 2--Areas Considered for Exclusion by Unit for Canada Lynx Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                                    Areas meeting the
                                                                      definition of
                                                                     critical habitat   Reasons for considering
                  Unit                         Specific area          considered for           exclusion
                                                                      exclusion, in
                                                                      mi\2\ (km\2\)
----------------------------------------------------------------------------------------------------------------
3. Northern Rockies....................  Tribal Lands: Flathead             186 (482)  Confederated Salish and
                                          Reservation, MT.                              Kootenai Tribes of the
                                                                                        Flathead Nation land
                                                                                        management plan with
                                                                                        considerations for
                                                                                        conserving lynx habitat
                                                                                        on Tribal lands within
                                                                                        the Reservation.
3. Northern Rockies....................  Tribal Lands: Blackfeet             44 (114)  Existing land management.
                                          Reservation, MT.
3. Northern Rockies....................  Montana DNRC Multi-                159 (413)  Existing Habitat
                                          species Habitat                               Conservation Plan (HCP)
                                          Conservation Plan.                            with protections for
                                                                                        lynx habitat on all DNRC
                                                                                        State Trust lands.
4. North Cascades......................  Washington DNR Lynx                168 (435)  Existing management plan
                                          Habitat Management Plan.                      that includes
                                                                                        considerations for
                                                                                        conserving lynx habitat.
6. Southern Rockies....................  Tribal Lands: Jicarilla              37 (97)  Existing land management.
                                          Apache Tribal Trust
                                          Lands, NM.
----------------------------------------------------------------------------------------------------------------

    In conclusion, for this proposed rule, we have reason to consider 
excluding the areas identified above from the final designation based 
on other relevant impacts. We specifically solicit comments on the 
inclusion or exclusion of such areas. We also solicit comments on 
whether there are potential economic, national security, or other 
relevant impacts from designating any other particular areas as 
critical habitat. As part of developing the final designation of 
critical habitat, we will evaluate the information we receive regarding 
potential impacts from designating the areas described above or any 
other particular areas, and we may conduct a discretionary exclusion 
analysis to determine whether to exclude those areas under authority of 
section 4(b)(2) and our implementing regulations at 50 CFR 424.19. If 
we receive a request for exclusion of a particular area and after 
evaluation of

[[Page 94673]]

supporting information we do not exclude, we will fully describe our 
decision in the final rule for this action.

Required Determinations

Clarity of the Rule

    We are required by E.O.s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866, 13563 and 
14094)

    Executive Order (E.O.) 14094 amends and reaffirms the principles of 
E.O. 12866 and E.O. 13563 and states that regulatory analysis should 
facilitate agency efforts to develop regulations that serve the public 
interest, advance statutory objectives, and are consistent with E.O.s 
12866 and 13563. Regulatory analysis, as practicable and appropriate, 
shall recognize distributive impacts and equity, to the extent 
permitted by law. E.O. 13563 emphasizes further that regulations must 
be based on the best available science and that the rulemaking process 
must allow for public participation and an open exchange of ideas. We 
have developed this proposed rule in a manner consistent with these 
requirements.
    Executive Order 12866, as reaffirmed by E.O. 13563 and amended and 
reaffirmed by E.O. 14094, provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is 
significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), whenever an 
agency is required to publish a notice of rulemaking for any proposed 
or final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effects of the rule 
on small entities (i.e., small businesses, small organizations, and 
small government jurisdictions). However, no regulatory flexibility 
analysis is required if the head of the agency certifies the rule will 
not have a significant economic impact on a substantial number of small 
entities. The SBREFA amended the RFA to require Federal agencies to 
provide a certification statement of the factual basis for certifying 
that the rule will not have a significant economic impact on a 
substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, 
only Federal action agencies would be directly regulated if we adopt 
the proposed critical habitat designation. The RFA does not require 
evaluation of the potential impacts to entities not directly regulated. 
Moreover, Federal agencies are not small entities. Therefore, because 
no small entities would be directly regulated by this rulemaking, the 
Service certifies that, if made final as proposed, the proposed 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a 
``significant energy action'' as an action that (i) is a significant 
regulatory action under E.O. 12866 or E.O. 14094 (88 FR 21879; April 
11, 2023)); and (ii) is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. This rule is a significant 
regulatory action under E.O. 12866. In our economic analysis, we did 
not find that this proposed critical habitat designation revision would 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and there is no 
requirement to prepare a statement of energy effects for this action.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:

[[Page 94674]]

    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandates'' include a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments, because much of the proposed 
designation (91 percent) occurs on Federal lands. Furthermore, based on 
an analysis conducted for the previous designation of critical habitat 
in 2014 and extrapolated to this designation, we do not expect this 
rule to significantly or uniquely affect small governments. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. Therefore, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Canada lynx in a takings implications assessment. The 
Act does not authorize the Services to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for the Canada lynx, and it 
concludes that, if adopted, this designation of critical habitat does 
not pose significant takings implications for lands within or affected 
by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, the appropriate State resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat essential to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule would not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. To assist the public in 
understanding the habitat needs of the species, this proposed rule 
identifies the physical or biological features essential to the 
conservation of the species. The proposed areas of critical habitat are 
presented on maps, and the proposed rule provides several options for 
the

[[Page 94675]]

interested public to obtain more detailed location information, if 
desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).
    However, when we designate as ``critical habitat'' any of the areas 
that fall within the jurisdiction of the U.S. Court of Appeals for the 
Tenth Circuit, including this designation proposed for the Canada lynx, 
we undertake a NEPA analysis for that critical habitat designation 
consistent with the Tenth Circuit's ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996). We invite the public to comment on the extent to which this 
proposed critical habitat designation may have a significant impact on 
the human environment, or fall within one of the categorical exclusions 
for actions that have no individual or cumulative effect on the quality 
of the human environment. We will complete our analysis, in compliance 
with NEPA, before finalizing this proposed rule.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and 
Coordination with Indian Tribal Governments), the President's 
memorandum of November 30, 2022 (Uniform Standards for Tribal 
Consultation; 87 FR 74479, December 5, 2022), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with joint Secretary's Order 3206 of 
June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes.
    On October 13, 2022, the Service sent a letter to Tribal partners 
across the range of the Canada lynx in the Western United States, 
indicating that we would be updating the SSA, explaining why it was 
necessary to revise the SSA to inform this critical habitat revision, 
and requesting additional information. We will coordinate with Tribes 
that have lands within the boundary of this proposed critical habitat 
revision to determine eligibility for exclusion of those lands from the 
final designation of critical habitat. We will continue to work with 
Tribal entities during the development of a final rule for the 
designation of critical habitat for the Canada lynx.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Montana Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Montana 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Signing Authority

    Martha Williams, Director of the U.S. Fish and Wildlife Service, 
approved this action on November 18, 2024, for publication. On November 
21, 2024, Martha Williams authorized the undersigned to sign the 
document electronically and submit it to the Office of the Federal 
Register for publication as an official document of the U.S. Fish and 
Wildlife Service.

Proposed Regulation Promulgation

    Accordingly, the U.S. Fish and Wildlife Services proposes to amend 
part 17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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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.

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2. In Sec.  17.95, in paragraph (a), amend the entry for ``Canada Lynx 
(Lynx canadensis)'' by:
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a. Revising paragraphs (1) through (5);
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b. Adding headings to the figures in paragraphs (6) and (7);
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c. Revising paragraphs (8) through (10); and
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d. Adding paragraph (11).
    The revisions and additions read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (a) Mammals.
* * * * *
Canada Lynx (Lynx canadensis)
    (1) Critical habitat units are depicted for States and Counties on 
the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Canada lynx consist of the following 
components:
    (i) Snowshoe hare densities adequate to support lynx residency and 
reproduction over time, distributed across large landscapes.
    (ii) A mosaic of boreal/subalpine forest at variable forest 
structural stages, the majority of which provide year-round dense 
horizontal cover at ground or snow level.
    (iii) Winter conditions that provide and maintain deep fluffy snow 
for extended periods of time.
    (iv) Spatial and temporal arrangements of habitat large enough (483 
square miles (mi\2\) (>=1,250 square kilometers (km\2\))) to support 
breeding populations.

[[Page 94676]]

    (v) Permeable landscapes conducive to within-unit lynx daily 
movements and dispersal.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the final rule.
    (4) Data layers defining map units were created using the 
Interagency Western Lynx Bio Team tier 1 polygons. These are based on 
spatial distribution models that capture 95 percent of withheld and 90 
percent of independent lynx GPS (Global Positioning System) locations 
while accounting for minimum patch size necessary to support multiple 
home ranges and high-quality habitat metrics. These areas were then 
verified by species experts to contain the physical and biological 
features essential to the conservation of the species. Critical habitat 
units were mapped and analyzed using Environmental Systems Research 
Institute (ESRI) ArcGIS Pro 2.9.11 Geographic Information System (GIS) 
program. Area calculations were done in ArcGIS Pro using the North 
American Datum (NAD) 1983 USA Contiguous Albers Equal Area Conic USGS 
projection. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site, 
https://www.fws.gov/species/canada-lynx-lynx-canadensis, at https://www.regulations.gov at Docket No. FWS-R6-ES-2024-0142 and Docket No. 
FWS-R6-ES-2013-0101, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Index map follows:

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Figure 1 to Canada Lynx (Lynx canadensis) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP29NO24.005

    (6) * * *
Figure 2 to Canada Lynx (Lynx canadensis) paragraph (6)
* * * * *
    (7) * * *

Figure 3 to Canada Lynx (Lynx canadensis) paragraph (7)
* * * * *
    (8) Unit 3: Northern Rockies--The entirety or portions of Bonner, 
Boundary, Clearwater, and Idaho Counties, ID, and Flathead, Glacier, 
Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Pondera, 
Powell, Ravalli, and Teton Counties, MT.
    (i) Unit 3 consists of 7,959 mi\2\ (20,613 km\2\) located in 
northwestern Montana and northern and east-central Idaho. Land 
ownership within the unit is 90 percent Federal, 4 percent State, 3 
percent Tribal, and 3 percent private.
    (ii) Map of Unit 3 follows:

Figure 4 to Canada Lynx (Lynx canadensis) paragraph (8)(ii)

[[Page 94677]]

[GRAPHIC] [TIFF OMITTED] TP29NO24.006

    (9) Unit 4: North Cascades--The entirety or portions of Chelan, 
Okanogan, Skagit, and Whatcom Counties, WA.
    (i) Unit 4 consists of 2,354 mi\2\ (6,097 km\2\) located in north-
central Washington. Land ownership within the unit is 93 percent 
Federal and 7 percent State, with small parcels of private lands that 
represent less than one-half of 1 percent of the unit.
    (ii) Map of Unit 4 follows:

Figure 5 to Canada Lynx (Lynx canadensis) paragraph (9)(ii)

[[Page 94678]]

[GRAPHIC] [TIFF OMITTED] TP29NO24.007

    (10) Unit 5: Greater Yellowstone Area--The entirety or portions of 
Fremont, Lincoln, Sublette, and Teton Counties, WY.
    (i) Unit 5 consists of 1,121 mi\2\ (2,902 km\2\) located in west-
central and northwestern Wyoming. Land ownership within the unit is 
over 99 percent Federal and includes small (less than 4 mi\2\ (10 
km\2\)) parcels of private and State lands.
    (ii) Map of Unit 5 follows:

Figure 6 to Canada Lynx (Lynx canadensis) paragraph (10)(ii)

[[Page 94679]]

[GRAPHIC] [TIFF OMITTED] TP29NO24.008

    (11) Unit 6: Southern Rockies--The entirety or portions of 
Archuleta, Boulder, Chaffee, Clear Creek, Conejos, Dolores, Eagle, 
Gilpin, Grand, Gunnison, Hinsdale, La Plata, Lake, Mineral, Montezuma, 
Montrose, Ouray, Park, Pitkin, Rio Grande, Saguache, San Juan, San 
Miguel, and Summit Counties, CO, and Rio Arriba County, NM.
    (i) Unit 6 consists of 7,679 mi\2\ (19,889 km\2\) located in west-
central and southwestern Colorado and northern New Mexico. Land 
ownership within the unit is almost 89 percent Federal, almost 9 
percent private, 1 percent State, and less than 1 percent Tribal and 
local government.
    (ii) Map of Unit 6 follows:

Figure 7 to Canada Lynx (Lynx canadensis) paragraph (11)(ii)

[[Page 94680]]

[GRAPHIC] [TIFF OMITTED] TP29NO24.009

* * * * *

Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics of the Joint Administrative Operations, U.S. 
Fish and Wildlife Service.
[FR Doc. 2024-27767 Filed 11-27-24; 8:45 am]
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