7226 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

§ 402.02 Definitions. 

* * * * * 

Destruction or adverse modification 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for the conservation of a 

listed species. Such alterations may 

include, but are not limited to, those 

that alter the physical or biological 

features essential to the conservation of 

a species or that preclude or 

significantly delay development of such 

features. 

* * * * * 

Dated: January 29, 2016. 

Michael J. Bean, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks, U.S. Department of 

the Interior. 

Dated: January 29, 2016. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2016–02675 Filed 2–10–16; 8:45 am] 

BILLING CODE 4333–15–P; 3510–22–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Dockets FWS–R9–ES–2011–0104 and 

120206102–5603–03; 4500030114] 

RIN 1018–AX87; 0648–BB82 

Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered 

Species Act 

AGENCY: U.S. Fish and Wildlife Service 

(FWS), Interior; National Marine 

Fisheries Service (NMFS), National 

Oceanic and Atmospheric 

Administration, Commerce. 

ACTION: Notice of final policy. 

SUMMARY: We, the U.S Fish and Wildlife 

Service and the National Marine 

Fisheries Service, (jointly, the 

‘‘Services’’) announce our final policy 

on exclusions from critical habitat 

under the Endangered Species Act. This 

non-binding policy provides the 

Services’ position on how we consider 

partnerships and conservation plans, 

conservation plans permitted under 

section 10 of the Act, Tribal lands, 

national-security and homeland-security 

impacts and military lands, Federal 

lands, and economic impacts in the 

exclusion process. This policy 

complements our implementing 

regulations regarding impact analyses of 

critical habitat designations and is 

intended to clarify expectations 

regarding critical habitat and provide for 

a more predictable and transparent 

critical-habitat-exclusion process. 

DATES: This policy is effective March 14, 

2016. 

ADDRESSES: You may review the 

reference materials and public input 

used in the creation of this policy at 

http://www.regulations.gov at Docket 

No. FWS–R9–ES–2011–0104. Some of 

these materials are also available for 

public inspection at U.S. Fish and 

Wildlife Service, Division of 

Conservation and Classification, MS: 

ES, 5275 Leesburg Pike, Falls Church, 

VA 22041–3803 during normal business 

hours. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Krofta, U.S. Fish and Wildlife 

Service, Division of Conservation and 

Classification, MS: ES, 5275 Leesburg 

Pike, Falls Church, VA 22041–3803; 

telephone 703/358–2171; facsimile 703/ 

358–1735; or Marta Nammack, National 

Marine Fisheries Service, Office of 

Protected Resources, 1315 East-West 

Highway, Silver Spring, MD 20910; 

telephone 301/427–8469; facsimile 301/ 

713–0376. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: Today, we 

publish in the Federal Register three 

related documents that are final agency 

actions. This document is one of the 

three, of which two are final rules and 

one is a final policy: 

• A final rule that amends the 

regulations governing section 7 

consultation under the Endangered 

Species Act to revise the definition of 

‘‘destruction or adverse modification’’ of 

critical habitat. That regulatory 

definition had been invalidated by 

several courts for being inconsistent 

with the Act. This final rule amends 

title 50 of the Code of Federal 

Regulations (CFR) at part 402. The 

Regulation Identifier Numbers (RIN) are 

1018–AX88 and 0648–BB82, and the 

final rule may be found on http://

www.regulations.gov at Docket No. 

FWS–R9–ES–2011–0072. 

• A final rule that amends the 

regulations governing the designation of 

critical habitat under section 4 of the 

Act. A number of factors, including 

litigation and the Services’ experience 

over the years in interpreting and 

applying the statutory definition of 

‘‘critical habitat,’’ highlighted the need 

to clarify or revise the regulations. This 

final rule amends 50 CFR part 424. It is 

published under RINs 1018–AX86 and 

0648–BB79 and may be found on http:// 

www.regulations.gov at Docket No. 

FWS–HQ–ES–2012–0096. 

• A final policy pertaining to 

exclusions from critical habitat and how 

we may consider partnerships and 

conservation plans, conservation plans 

permitted under section 10 of the Act, 

Tribal lands, national-security and 

homeland-security impacts and military 

lands, Federal lands, and economic 

impacts in the exclusion process. This 

final policy complements the final rule 

amending 50 CFR 424.19 and provides 

for a predictable and transparent 

exclusion process. The policy is 

published under RINs 1018–AX87 and 

0648–BB82 and is set forth below in this 

document. The policy may be found on 

http://www.regulations.gov at Docket 

No. FWS–R9–ES–2011–0104. 

Background 

The National Marine Fisheries Service 

(NMFS) and U.S. Fish and Wildlife 

Service (FWS) are charged with 

implementing the Endangered Species 

Act of 1973, as amended (16 U.S.C. 1531 

et seq.) (Act), the goal of which is to 

provide a means to conserve the 

ecosystems upon which listed species 

depend and to provide a program for 

listed species conservation. Critical 

habitat is one tool in the Act that 

Congress established to achieve species 

conservation. In section 3(5)(A) of the 

Act Congress defined ‘‘critical habitat’’ 

as: 

(i) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the provisions of 

section 4 of this Act, 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 protection; and 

(ii) specific areas outside the 

geographical area occupied by the 

species at the time it is listed in 

accordance with the provisions of 

section 4 of this Act, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species. 

Specifying the geographic location of 

critical habitat helps facilitate 

implementation of section 7(a)(1) by 

identifying areas where Federal agencies 

can focus their conservation programs 

and use their authorities to further the 

purposes of the Act. In addition to 

serving as an educational tool, the 

designation of critical habitat also 

provides a significant regulatory 

protection—the requirement that 

Federal agencies consult with the 


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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7227 

Services under section 7(a)(2) to insure 

their actions are not likely to destroy or 

adversely modify critical habitat. 

Section 4 of the Act requires the 

Services to designate critical habitat, 

and sets out standards and processes for 

determining critical habitat. Congress 

authorized the Secretaries to ‘‘exclude 

any area from critical habitat if [s]he 

determines that the benefits of exclusion 

outweigh the benefits of specifying such 

area as part of the critical habitat, unless 

[s]he determines, based on the best 

scientific and commercial data 

available, that the failure to designate 

such area as critical habitat will result 

in the extinction of the species 

concerned’’ (section 4(b)(2)). 

Over the years, legal challenges have 

been brought to the Services’ process for 

considering exclusions. Several court 

decisions have addressed the Services’ 

implementation of section 4(b)(2). In 

2008, the Solicitor of the Department of 

the Interior issued a legal opinion on 

implementation of section 4(b)(2) 

(http://www.doi.gov/solicitor/

opinions.html). That opinion is based 

on the text of the Act and principles of 

statutory interpretation and relevant 

case law. The opinion explained the 

legal considerations that guide the 

Secretary’s exclusion authority, and 

discussed and elaborated on the 

application of these considerations to 

the circumstances commonly faced by 

the Services (e.g., habitat conservation 

plans, Tribal lands). 

To provide greater predictability and 

transparency regarding how the Services 

generally consider exclusions under 

section 4(b)(2), the Services announce 

this final policy regarding several issues 

that frequently arise in the context of 

exclusions. This policy on 

implementation of specific aspects of 

section 4(b)(2) does not cover the entire 

range of factors that may be considered 

as the basis for an exclusion in any 

given designation, nor does it serve as 

a comprehensive interpretation of all 

the provisions of section 4(b)(2). 

This final policy sets forth the 

Services’ position regarding how we 

consider partnerships and conservation 

plans, conservation plans permitted 

under section 10 of the Act, Tribal 

lands, national-security and homelandsecurity impacts and military lands, 

Federal lands, and economic impacts in 

the exclusion process. The Services 

intend to apply this policy when 

considering exclusions from critical 

habitat. That being said, under the terms 

of the policy, the Services retain a great 

deal of discretion in making decisions 

with respect to exclusions from critical 

habitat. This policy does not mandate 

particular outcomes in future decisions 

on critical habitat designations. 

Changes to the Proposed Policy 

Elements 

Below are a summary of changes to 

the proposed policy elements as a result 

of public comment and review. The 

final policy elements can be found at 

the end of this policy. 

1. Added language to policy element 

2 to make clear that the list presented 

in this policy is not a list of 

requirements for non-permitted plans, 

but rather factors the Services will use 

to evaluate non-permitted plans and 

partnerships. This list is not exclusive; 

all items may not apply to every plan. 

2. In policy element 2(c), added text 

to the criterion in the non-permitted 

plans policy element to clarify that 

required determinations may be a factor 

considered in a discretionary 4(b)(2) 

exclusion analysis where such 

determinations are ‘‘necessary and 

appropriate.’’ 

3. Removed the phrase, ‘‘not just 

providing guidelines,’’ from paragraph 

3(c). 

4. Made several other minor edits to 

increase clarity and readability of the 

policy elements. 

Implementation of Section 4(b)(2) of the 

Act 

On August 28, 2013 (78 FR 53058), 

the Services published a final rule 

revising 50 CFR 424.19. In that rule the 

Services elaborated on the process and 

standards for implementing section 

4(b)(2) of the Act. This final policy is 

meant to complement those revisions to 

50 CFR 424.19, and provides further 

clarification as to how the Services will 

implement section 4(b)(2) when 

designating critical habitat. 

Section 4(b)(2) of the Act provides 

that: 

The Secretary shall designate critical habitat, 

and make revisions thereto, under subsection 

(a)(3) 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 impact, of 

specifying any particular area as critical 

habitat. The Secretary may exclude any area 

from critical habitat if [s]he determines that 

the benefits of such exclusion outweigh the 

benefits of specifying such area as part of the 

critical habitat, unless [s]he determines, 

based on the best scientific and commercial 

data available, that the failure to designate 

such area as critical habitat will result in the 

extinction of the species concerned. 

In 1982, Congress added this 

provision to the Act, both to require the 

Services to consider the relevant 

impacts of designating critical habitat 

and to provide a means for the Services 

to reduce potentially negative impacts 

of designation by excluding, in 

appropriate circumstances, particular 

areas from a designation. The first 

sentence of section 4(b)(2) sets out a 

mandatory requirement that the 

Services consider the economic impact, 

impact on national security, and any 

other relevant impacts prior to 

designating an area as part of a critical 

habitat designation. The Services always 

consider such impacts, as required 

under this sentence, for each and every 

designation of critical habitat. (Although 

the term ‘‘homeland security’’ was not 

in common usage in 1982, the Services 

conclude that Congress intended that 

‘‘national security’’ includes what we 

now refer to as ‘‘homeland security.’’) 

The second sentence of section 4(b)(2) 

outlines a separate, discretionary 

process by which the Secretaries may 

elect to determine whether to exclude 

an area from the designation, by 

performing an exclusion analysis. The 

Services use their consideration of 

impacts under the first sentence of 

section 4(b)(2), their consideration of 

whether to engage in the discretionary 

exclusion analysis under the second 

sentence of section 4(b)(2), and any 

exclusion analysis that the Services 

undertake, as the primary basis for 

satisfying the provisions of Executive 

Orders 12866 and 13563. E.O. 12866 

(incorporated by E.O. 13563) requires 

agencies to assess the costs and benefits 

of a rule, and, to the extent permitted by 

law, to propose or adopt the rule only 

upon a reasoned determination that the 

benefits of the intended regulation 

justify the costs. 

Conducting an exclusion analysis 

under section 4(b)(2) involves balancing 

or weighing the benefits of excluding a 

particular area from a designation of 

critical habitat against the benefits of 

including that area in the designation. If 

the benefits of exclusion outweigh the 

benefits of inclusion, the Secretaries 

may exclude the particular area, unless 

they determine that the exclusion will 

result in the extinction of the species 

concerned. The discretionary 4(b)(2) 

exclusion analysis is fully consistent 

with the E.O. requirements in that the 

analysis permits excluding an area 

where the benefits of exclusion 

outweigh the benefits of inclusion, and 

would not lead to exclusion of an area 

when the benefits of exclusion do not 

outweigh the benefits of inclusion. 

This policy sets forth specific 

categories of information that we often 

consider when we enter into the 

discretionary 4(b)(2) exclusion analysis 

and exercise the Secretaries’ discretion 

to exclude areas from critical habitat. 

We do not intend to cover in these 

examples all the categories of 


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information that may be relevant, or to 

limit the Secretaries’ discretion to 

consider and assign weight to any 

relevant benefits as appropriate. 

Moreover, our implementing 

regulations at 50 CFR 424.19 further 

clarify the exclusion process for critical 

habitat and address statutory changes 

and case law. The regulations at 50 CFR 

424.19, as well as the statute itself, state 

that the Secretaries have the discretion 

to exclude any particular area from the 

critical habitat upon a determination 

that the benefits of such exclusion 

outweigh the benefits of specifying the 

particular area as part of the critical 

habitat. Furthermore, the Secretaries 

may consider any relevant benefits. The 

weight and consideration given to those 

benefits is within the discretion of the 

Secretaries. The regulations at 50 CFR 

424.19 provide the framework for how 

the Services intend to implement 

section 4(b)(2) of the Act. This policy 

further details the discretion available to 

the Services (acting for the Secretaries), 

and provides detailed examples of how 

the Services may consider partnerships 

and conservation plans, conservation 

plans permitted under section 10 of the 

Act, Tribal lands, national-security and 

homeland-security impacts and military 

lands, Federal lands, and economic 

impacts in the exclusion process when 

we undertake a discretionary 4(b)(2) 

exclusion analysis. 

General Framework for Considering an 

Exclusion and Conducting a 

Discretionary 4(b)(2) Exclusion Analysis 

When the Services determine that 

critical habitat is prudent and 

determinable for species listed as 

endangered or threatened species under 

the Act, they must follow the statutory 

and regulatory provisions of the Act to 

designate critical habitat. The Act’s 

language makes clear that biological 

considerations drive the initial step of 

identifying critical habitat. First, the 

Act’s definition of ‘‘critical habitat’’ 

requires the Secretaries to identify areas 

based on the conservation needs of the 

species. Second, section 4(b)(2) 

expressly requires designations to be 

made based on the best scientific data 

available. (It is important to note that, 

once the Secretaries identify specific 

areas that meet the definition of ‘‘critical 

habitat,’’ the Secretaries do not have the 

discretion to decline to recognize those 

areas as potential critical habitat. Only 

areas subject to an integrated natural 

resources management plan (INRMP) 

that meets the requirements of section 

4(a)(3)(B)(i) are categorically ineligible 

for designation.) 

Having followed the biologically 

driven first step of identifying ‘‘critical 

habitat’’ for a species, the Secretaries 

turn to the remaining procedures set 

forth in section 4(b)(2), which allow for 

consideration of whether those areas 

ultimately should be designated as 

critical habitat. Thus, pursuant to the 

first sentence of section 4(b)(2), the 

Secretaries then undertake the 

mandatory consideration of impacts on 

the economy and national security, as 

well as any other impact that the 

Secretaries determine is relevant. 

The Act provides a mechanism that 

allows the Secretaries to exclude 

particular areas only upon a 

determination that the benefits of 

exclusion outweigh those of inclusion, 

so long as the exclusion will not result 

in the extinction of the species 

concerned. The Services call this the 

discretionary 4(b)(2) exclusion analysis. 

Neither the Act nor the implementing 

regulations at 50 CFR 424.19 require the 

Secretaries to conduct a discretionary 

4(b)(2) exclusion analysis (see, e.g., 

Cape Hatteras Access Preservation 

Alliance v. DOI, 731 F. Supp. 2d 15, 29– 

30 (D.D.C. 2010)). Rather, the Secretaries 

have discretion as to whether to conduct 

that analysis. If a Secretary decides not 

to consider exclusion of any particular 

area, no additional analysis is required. 

However, if the Secretary contemplates 

exclusion of a particular area, an initial 

screening may be conducted to evaluate 

potential exclusions. The Secretary may 

undertake a preliminary evaluation of 

any plans, partnerships, economic 

considerations, national-security 

considerations, or other relevant 

impacts identified after considering the 

impacts required by the first sentence of 

section 4(b)(2). Following the 

preliminary evaluation, the Secretary 

may choose to enter into the 

discretionary 4(b)(2) exclusion analysis 

for any particular area. If the Secretary 

does so, the Secretary has broad 

discretion as to what factors to consider 

as benefits of inclusion and benefits of 

exclusion, and what weight to assign to 

each factor—nothing in the Act, its 

implementing regulations, or this policy 

limits this discretion. 

When conducting a discretionary 

4(b)(2) exclusion analysis, one of the 

factors that the Secretaries may consider 

is the effect of existing conservation 

plans or programs. Those plans and 

programs can reduce the benefits of 

including particular areas in a 

designation of critical habitat. To state 

this another way, because there are 

already conservation actions occurring 

on the ground as a result of the plan or 

program, the regulatory benefit of 

overlaying a designation of critical 

habitat may be reduced, because the 

designation may be redundant, or may 

provide little more conservation benefit 

compared to what is already being 

provided through the conservation plan 

or program. As a result, the existence of 

these conservation plans or programs 

reduces the benefits of including an area 

in critical habitat. As a matter of logic, 

however, the conservation benefits of an 

existing conservation plan or program 

generally cannot be considered benefits 

of excluding the area it covers from 

designation as critical habitat. This is 

because the conservation plan or 

program neither results from the 

exclusion being contemplated, nor is its 

continuation dependent on the 

exclusion being contemplated. The 

conservation plan or program is 

materially unaffected regardless of 

inclusion or exclusion from critical 

habitat. 

In addition, the Services wish to 

encourage and foster conservation 

partnerships, which can lead to future 

conservation plans that benefit listed 

species. This is particularly important 

because partnerships can lead to 

conservation actions that provide 

benefits, with respect to private lands, 

that often cannot be achieved through 

designation of critical habitat and 

section 7 consultations. Because 

conservation partnerships are voluntary, 

the Services have concluded that 

excluding areas covered by existing 

plans and programs can encourage land 

managers to partner with the Services in 

the future, by removing any real or 

perceived disincentives for engaging in 

conservation activities. Those future 

partnerships do not necessarily reduce 

the benefits of including an area in 

critical habitat now; they may, however, 

provide a benefit by encouraging future 

conservation action. That benefit is a 

benefit of excluding an area from the 

designation. Thus, an existing plan or 

program can reduce the benefits of 

inclusion of an area covered by the plan 

or program, and at the same time the 

Secretaries’ choice to exclude the area 

may encourage future conservation 

partnerships. Moreover, because the 

fostering and maintenance of 

partnerships can greatly further the 

conservation goals of the Act, we 

generally give great weight to the 

benefits of excluding areas where we 

have demonstrated partnerships. 

In a discretionary 4(b)(2) exclusion 

analysis, the Services compare benefits 

of inclusion with benefits of exclusion. 

Some examples of benefits of including 

a particular area in critical habitat 

include, but are not limited to: (1) The 

educational benefits of identifying an 

area as critical habitat (e.g., general 

increase of awareness of listed species 

and their designated critical habitat); 


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and (2) the regulatory benefit of 

designating an area as critical habitat as 

realized through an adverse 

modification analysis in a section 7 

consultation. As discussed above, these 

benefits of inclusion may be reduced by 

the conservation provisions of a plan or 

program, in that the educational benefit 

may have already been realized through 

development of the plan, and the onthe-ground conservation actions may 

already provide some or all of the 

benefit that could be reasonably 

expected as the outcome of a section 7 

consultation. The weights assigned to 

the benefits of inclusion in any 

particular case are determined by the 

Secretaries. Some examples of benefits 

of excluding a particular area from 

critical habitat include: (1) Where there 

is an existing conservation plan or 

program, the encouragement of 

additional conservation partnerships in 

the future; and (2) the avoidance of 

probable negative incremental impacts 

from designating a particular area as 

critical habitat, including economic 

impacts and impacts to national security 

and public safety. 

The next step in the discretionary 

4(b)(2) exclusion analysis is for the 

Secretaries to determine if the benefits 

of exclusion outweigh the benefits of 

inclusion for a particular area. If so, they 

may exclude that area, unless they 

determine that the exclusion will result 

in the extinction of the species 

concerned. We note that exclusions 

primarily based on conservation plans 

will likely maintain the overall level of 

protection for the species in question, 

because the plans will have reduced or 

eliminated the benefit of designating 

that area, as discussed above. In 

contrast, exclusions primarily based on 

economic or national security 

considerations may result in less overall 

protection for the species (i.e., forgoing 

significant benefits of inclusion). 

However, regardless of conservation 

outcome as outlined above, the 

Secretaries may still exclude such areas 

as long as they conclude that the 

benefits of exclusion outweigh the 

benefits of inclusion (and the exclusion 

itself would not result in extinction of 

the species). 

Policy Elements 

a. The Services’ Discretion 

The Act affords a great degree of 

discretion to the Services in 

implementing section 4(b)(2). This 

discretion is applicable to a number of 

aspects of section 4(b)(2) including 

whether to enter into the discretionary 

4(b)(2) exclusion analysis and the 

weights assigned to any particular factor 

used in the analysis. Most significant is 

that the decision to exclude is always 

discretionary, as the Act states that the 

Secretaries ‘‘may’’ exclude any areas. 

Under no circumstances is exclusion 

required under the second sentence of 

section 4(b)(2). 

This policy explains how the Services 

generally exercise their discretion to 

exclude an area when the benefits of 

exclusion outweigh the benefits of 

inclusion. In articulating this general 

practice, the Services do not intend to 

limit in any manner the discretion 

afforded to the Secretaries by the 

statute. 

b. Private or Other Non-Federal 

Conservation Plans or Agreements and 

Partnerships, in General 

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 

Services. In the case of a habitat 

conservation plan (HCP), safe harbor 

agreement (SHA), or a candidate 

conservation agreement with assurances 

(CCAA), a plan or agreement is 

developed in partnership with the 

Services for the purposes of attaining a 

permit under section 10 of the Act. See 

paragraph c, below, for a discussion of 

HCPs, SHAs, and CCAAs. 

We evaluate a variety of factors to 

determine how the benefits of any 

exclusion and the benefits of inclusion 

are affected by the existence of private 

or other non-Federal conservation plans 

or agreements and their attendant 

partnerships when we undertake a 

discretionary 4(b)(2) exclusion analysis. 

A non-exhaustive list of factors that we 

will consider for non-permitted plans or 

agreements is shown below. These 

factors are not required elements of 

plans or agreements, and all items may 

not apply to every plan or agreement. 

(i) The degree to which the record of 

the plan supports a conclusion that a 

critical habitat designation would 

impair the realization of 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 there has 

been agency review and required 

determinations (e.g., State regulatory 

requirements), 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; and 

(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 Services will consider whether a 

plan or agreement has previously been 

subjected to public comment, agency 

review, and NEPA compliance 

processes because that may indicate the 

degree of critical analysis the plan or 

agreement has already received. For 

example, if a particular plan was 

developed by a county-level government 

that had been required to comply with 

a State-based environmental-quality 

regulation, the Services would take that 

into consideration when evaluating the 

plan. The factors outlined above 

influence the Services’ determination of 

the appropriate weight that should be 

given to a particular conservation plan 

or agreement. 

c. Private or Other Non-Federal 

Conservation Plans Related to Permits 

Under Section 10 of the Act 

HCPs for incidental take permits 

under section 10(a)(1)(B) of the Act 

provide for partnerships with nonFederal entities to minimize and 

mitigate impacts to listed species and 

their habitat. In some cases, HCP 

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. We place great value on 

the partnerships that are developed 

during the preparation and 

implementation of HCPs. 

CCAAs and SHAs are voluntary 

agreements designed to conserve 

candidate and listed species, 

respectively, on non-Federal lands. In 

exchange for actions that contribute to 

the conservation of species on nonFederal lands, participating property 

owners are covered by an ‘‘enhancement 


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of survival’’ permit under section 

10(a)(1)(A) of the Act, which authorizes 

incidental take of the covered species 

that may result from implementation of 

conservation actions, specific land uses, 

and, in the case of SHAs, the option to 

return to a baseline condition under the 

agreements. The Services also provide 

enrollees assurances that 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 agreements. 

When we undertake a discretionary 

4(b)(2) exclusion analysis, we will 

always consider areas covered by a 

permitted CCAA/SHA/HCP, and we 

anticipate consistently excluding such 

areas from a designation of critical 

habitat if incidental take caused by the 

activities in those areas is covered by 

the permit under section 10 of the Act 

and the CCAA/SHA/HCP meets all of 

the following conditions: 

1. 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. 

2. 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. 

3. The CCAA/SHA/HCP specifically 

addresses the habitat of the species for 

which critical habitat is being 

designated and meets the conservation 

needs of the species in the planning 

area. 

We will undertake a case-by-case 

analysis to determine whether these 

conditions are met and, as with other 

conservation plans, whether the benefits 

of exclusion outweigh the benefits of 

inclusion. 

The benefits of excluding lands with 

CCAAs, SHAs, or properly implemented 

HCPs that have been permitted under 

section 10 of the Act include relieving 

landowners, communities, and counties 

of any additional regulatory burdens 

that might be imposed as a result of the 

critical habitat designation. A related 

benefit of exclusion is the unhindered, 

continued ability to maintain existing 

partnerships, and the opportunity to 

seek new partnerships with potential 

plan participants, including States, 

counties, local jurisdictions, 

conservation organizations, and private 

landowners. Together, these entities can 

implement conservation actions that the 

Services would be unable to accomplish 

without private landowners. These 

partnerships can lead to additional 

CCAAs, SHAs, and HCPs. This is 

particularly important because HCPs 

often cover a wide range of species, 

including listed plant species (for which 

there is no general take prohibition 

under section 9 of the Act), and species 

that are not State or federally listed 

(which do not receive the Act’s 

protections). Neither of these categories 

of species are likely to be protected from 

development or other impacts in the 

absence of HCPs. 

As is the case with conservation plans 

generally, the protections that a CCAA, 

SHA, or HCP provide to habitat can 

reduce the benefits of including the 

covered area in the critical habitat 

designation. However, those protections 

may not eliminate the benefits of critical 

habitat designation. For example, 

because the Services generally approve 

HCPs on the basis of their efficacy at 

minimizing and mitigating negative 

impacts to listed species and their 

habitat, these plans generally offset 

those benefits of inclusion. Nonetheless, 

HCPs often allow for development of 

some of the covered area, and the 

associated permit provides 

authorization of incidental take caused 

by that development (although a 

properly designed HCP should steer 

development toward the least 

biologically important habitat). Thus, 

designation of the areas specified for 

development that meet the definition of 

‘‘critical habitat’’ may still provide a 

conservation benefit to the species. In 

addition, if activities not covered by the 

HCP are affecting or may affect an area 

that is identified as critical habitat, then 

the benefits of inclusion of that specific 

area may be relatively high, because 

additional conservation benefits may be 

realized by the designation of critical 

habitat in that area. In any case, the 

Services will weigh the benefits of 

inclusion against the benefits of 

exclusion (usually the fostering of 

partnerships that may result in future 

conservation actions). 

We generally will not exclude from a 

designation of critical habitat any areas 

likely to be covered by CCAAs, SHAs, 

and HCPs that are still under 

development when we undertake a 

discretionary 4(b)(2) exclusion analysis. 

If a CCAA, SHA, or HCP is close to 

being approved, we will evaluate these 

draft plans under the framework of 

general plans and partnerships 

(subsection b, above). In other words, 

we will consider factors, such as 

partnerships that have been developed 

during the preparation of draft CCAAs, 

SHAs, and HCPs, and broad public 

benefits, such as encouraging the 

continuation of current and 

development of future conservation 

efforts with non-Federal partners, as 

possible benefits of exclusion. However, 

we will generally give little weight to 

promises of future conservation actions 

in draft CCAAs, SHAs, and HCPs; 

therefore, we will generally find that 

such promises will do little to reduce 

the benefits of inclusion in the 

discretionary 4(b)(2) exclusion analysis, 

even if they may directly benefit the 

species for which a critical habitat 

designation is proposed. 

d. Tribal Lands 

There are several Executive Orders, 

Secretarial Orders, and policies that 

relate to 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 Services to consult with 

Tribes on a government-to-government 

basis. 

A joint Secretarial Order that applies 

to both FWS and NMFS, Secretarial 

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, S.O. 3206 explicitly 

recognizes the right of Tribes to 

participate fully in the listing process, 

including designation of critical habitat. 

The Order also states: ‘‘Critical habitat 

shall not be designated in such areas 

unless it is determined essential to 

conserve a listed species. In designating 

critical habitat, the Services shall 

evaluate and document the extent to 

which the conservation needs of the 

listed species can be achieved by 

limiting the designation to other lands.’’ 

In light of this instruction, when we 

undertake a discretionary 4(b)(2) 

exclusion analysis, we will always 

consider exclusions of Tribal lands 

under section 4(b)(2) of the Act prior to 

finalizing a designation of critical 

habitat, and will give great weight to 

Tribal concerns in analyzing the 

benefits of exclusion. 


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However, S.O. 3206 does not preclude 

us from designating Tribal lands or 

waters as critical habitat, nor does it 

state that Tribal lands or waters cannot 

meet the Act’s definition of ‘‘critical 

habitat.’’ We are directed by the Act 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 or 

protection and unoccupied areas that 

are essential to the conservation of a 

species), without regard to 

landownership. While S.O. 3206 

provides important direction, it 

expressly states that it does not modify 

the Secretaries’ statutory authority. 

e. Impacts on National Security and 

Homeland Security 

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)), as revised in 

2003, provides: ‘‘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 (Sikes 

Act) (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.’’ In other words, as 

articulated in the final revised 

regulations at 50 CFR 424.12(h), if the 

Services conclude that an INRMP 

‘‘provides a benefit’’ to the species, the 

area covered is ineligible for designation 

and thus cannot be designated as critical 

habitat. 

Section 4(a)(3)(B)(i) of the Act, 

however, may not cover all DoD lands 

or areas that pose potential nationalsecurity 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), 

national-security or homeland-security 

concerns are not a factor in the process 

of determining what areas meet the 

definition of ‘‘critical habitat.’’ 

Nevertheless, when designating critical 

habitat under section 4(b)(2), the 

Secretaries must consider impacts on 

national security, including homeland 

security, on lands or areas not covered 

by section 4(a)(3)(B)(i). Accordingly, we 

will always consider for exclusion from 

the designation areas for which DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns. 

We cannot, however, automatically 

exclude requested areas. When DoD, 

DHS, or another Federal agency requests 

exclusion from critical habitat on the 

basis of national-security or homelandsecurity impacts, it must provide 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 bordersecurity 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 the 

agency provides a reasonably specific 

justification, we will defer to the expert 

judgment of DoD, DHS, another Federal 

agency as to: (1) Whether activities on 

its lands or waters, or its activities on 

other lands or waters, have nationalsecurity 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 4(b)(2) 

exclusion analysis, we will give great 

weight to national-security and 

homeland-security concerns in 

analyzing the benefits of exclusion. 

f. Federal Lands 

We recognize that we have obligations 

to consider the impacts of designation of 

critical habitat on Federal lands under 

the first sentence of section 4(b)(2) and 

under E.O. 12866. However, as 

mentioned above, the Services have 

broad discretion under the second 

sentence of 4(b)(2) on how to weigh 

those impacts. In particular, ‘‘[t]he 

consideration and weight given to any 

particular impact is completely within 

the Secretary’s discretion.’’ (H.R. Rep. 

No. 95–1625, at 17 (1978)). In 

considering how to exercise this broad 

discretion, we are mindful that Federal 

land managers have unique obligations 

under the Act. First, Congress declared 

its policy that ‘‘all Federal departments 

and agencies shall seek to conserve 

endangered species and threatened 

species and shall utilize their 

authorities in furtherance of the 

purposes of this Act.’’ (section 2(c)(1)). 

Second, all Federal agencies have 

responsibilities under section 7 of the 

Act to carry out programs for the 

conservation of listed species and to 

ensure their actions are not likely to 

jeopardize the continued existence of 

listed species or result in the 

destruction or adverse modification of 

critical habitat. 

We also note that, while the benefits 

of excluding non-Federal lands include 

development of new conservation 

partnerships, those benefits do not 

generally arise with respect to Federal 

lands, because of the independent 

obligations of Federal agencies under 

section 7 of the Act. Conversely, the 

benefits of including Federal lands in a 

designation are greater than non-Federal 

lands because there is a Federal nexus 

for projects on Federal lands. Thus, if a 

project for which there is discretionary 

Federal involvement or control is likely 

to adversely affect the critical habitat, a 

formal section 7 consultation would 

occur and the Services would consider 

whether the project would result in the 

destruction or adverse modification of 

the critical habitat. 

Under the Act, the only direct 

consequence of critical habitat 

designation is to require Federal 

agencies to ensure, through section 7 

consultation, that any action they fund, 

authorize, or carry out does not destroy 

or adversely modify designated critical 

habitat. The costs that this requirement 

may impose on Federal agencies can be 

divided into two types: (1) The 

additional administrative or 

transactional costs associated with the 

consultation process with a Federal 

agency, and (2) the costs to Federal 

agencies and other affected parties, 

including applicants for Federal 

authorizations (e.g., permits, licenses, 

leases), of any project modifications 

necessary to avoid destruction or 

adverse modification of critical habitat. 

Consistent with the unique obligations 

that Congress imposed for Federal 

agencies in conserving endangered and 

threatened species, we generally will 

not consider avoidance of the 

administrative or transactional costs 

associated with the section 7 

consultation process to be a ‘‘benefit’’ of 

excluding a particular area from a 

critical habitat designation in any 

discretionary 4(b)(2) exclusion analysis. 

We will, however, consider the extent to 

which such consultation would produce 

an outcome that has economic or other 

impacts, such as by requiring project 

modifications and additional 

conservation measures by the Federal 

agency or other affected parties. 

Federal lands should be prioritized as 

sources of support in the recovery of 


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listed species. To the extent possible, 

we will focus designation of critical 

habitat on Federal lands in an effort to 

avoid the real or perceived regulatory 

burdens on non-Federal lands. We do 

greatly value the partnership of other 

Federal agencies in the conservation of 

listed and non-listed species. However, 

for the reasons listed above, we will 

focus our exclusions on non-Federal 

lands. We are most likely to determine 

that the benefits of excluding Federal 

lands outweigh the benefits of including 

those lands when national-security or 

homeland-security concerns are present. 

g. Economic Impacts 

The first sentence of section 4(b)(2) of 

the Act requires the Services to consider 

the economic impacts (as well as the 

impacts on national security and any 

other relevant impacts) of designating 

critical habitat. In addition, economic 

impacts may, for some particular areas, 

play an important role in the 

discretionary 4(b)(2) exclusion analysis 

under the second sentence of section 

4(b)(2). In both contexts, the Services 

will consider the probable incremental 

economic impacts of the designation. 

When the Services undertake a 

discretionary 4(b)(2) exclusion analysis 

with respect to a particular area, they 

will weigh the economic benefits of 

exclusion (and any other benefits of 

exclusion) against any benefits of 

inclusion (primarily the conservation 

value of designating the area). The 

conservation value may be influenced 

by the level of effort needed to manage 

degraded habitat to the point where it 

could support the listed species. The 

Services will use their discretion in 

determining how to weigh probable 

incremental economic impacts against 

conservation value. The nature of the 

probable incremental economic impacts 

and not necessarily a particular 

threshold level triggers considerations 

of exclusions based on probable 

incremental economic impacts. For 

example, if an economic analysis 

indicates high probable incremental 

impacts of designating a particular 

critical habitat unit of low conservation 

value (relative to the remainder of the 

designation), the Services may consider 

exclusion of that particular unit. 

Summary of Comments and 

Recommendations 

On May 12, 2014, we published a 

document in the Federal Register (79 

FR 27052) that requested written 

comments and information from the 

public on the draft policy regarding 

implementing section 4(b)(2) of the Act. 

In that document, we announced that 

the comment period would be open for 

60 days, ending July 11, 2014. We 

received numerous requests to extend 

the comment period, and we 

subsequently published a document on 

June 26, 2014 (79 FR 36330), extending 

the comment period to October 9, 2014. 

Comments we received are grouped into 

general categories specifically relating to 

the draft policy. 

Comment (1): Many commenters, 

including federally elected officials, 

requested an extension of the public 

comment period announced in the draft 

policy. Additionally, we received 

requests to reopen the comment period 

that ended on October 9, 2014. 

Our Response: On June 26, 2014 (79 

FR 36330), we extended the public 

comment period on the draft policy for 

an additional 90 days to accommodate 

this request and to allow for additional 

review and public comment. The 

comment period for the draft policy 

was, therefore, open for 150 days, which 

provided adequate time for all 

interested parties to submit comments 

and information. Additionally, the 

Services held numerous outreach 

initiatives that included briefings and 

webinars for elected officials, States, 

potentially affected Federal agencies, 

and interest groups, both 

environmental- and industry-focused. 

Secretarial Discretion 

Comment (2): We received many 

comments regarding the Services’ 

delegated discretion from the 

Secretaries. Commenters expressed 

concern that the Services’ delegated 

discretion is too broad, the assigning of 

weight to benefits is subjective, and the 

proposed policy would greatly extend 

the Services’ discretionary authority and 

allow for subjective disregard of 

voluntary State and private conservation 

efforts. 

Our Response: This policy does not 

expand or reduce Secretarial authority. 

The policy reflects only the discretion 

expressly provided for in the Act. The 

word ‘‘shall’’ is used to denote 

mandatory actions or outcomes, and 

‘‘may’’ is used to indicate where there 

is discretion in particular matters. In the 

Act, the word ‘‘may,’’ as it prefaces the 

phrase ‘‘exclude a particular area,’’ thus 

clearly provides the Secretaries a 

choice, the ability to decide whether 

areas should be excluded based on 

weighing benefits of inclusion against 

the benefits of exclusion. The 

Secretaries may choose to exclude 

particular areas if those benefits of 

exclusion outweigh benefits of 

inclusion, unless the exclusion will 

result in the extinction of the species 

concerned. Commenters appear to be 

questioning the Secretary’s ability to 

choose whether to enter into the 

discretionary weighing of benefits. 

Congress expressly provided the 

Secretaries discretion to decide whether 

to enter into the exclusion analysis 

described in the second sentence of 

section 4(b)(2). By contrast, the 

Secretaries do not have discretion when 

it comes to the requirement to consider 

the economic impact, impacts to 

national security, and any other relevant 

impact of specifying an area as critical 

habitat, as described in the first 

sentence of section 4(b)(2). 

Finally, this policy generally reflects 

the practices followed by the Services 

regarding their implementation of 

section 4(b)(2), and provides greater 

transparency by explaining to the public 

how the Services generally exercise the 

discretion granted by the Act. 

Comment (3): Some commenters 

suggested that the Services need to 

clarify that the Secretaries have 

discretion in whether to conduct an 

exclusion analysis. They stated that, 

while the draft policy does identify the 

discretionary nature of exclusions under 

4(b)(2), language in other areas of the 

policy, such as ‘‘we will always 

consider’’ and ‘‘generally exclude,’’ may 

cause confusion, and appear 

contradictory. Furthermore, some 

commenters stated that discussion of 

the discretionary 4(b)(2) exclusion 

analysis should clearly state that such 

analysis occurs only after the Secretary 

has identified an area she ‘‘may’’ 

consider for exclusion, based on 

consideration of the economic impact, 

the impact on national security, and any 

other relevant impact (see M-Opinion at 

2. Step 2, p. 17). 

Our Response: We agree with the 

commenter, and have made edits in the 

final policy to reflect and clarify what 

are requirements under the Act and 

where discretion is provided, in 

particular with the discretionary 4(b)(2) 

exclusion analysis. 

Comment (4): Commenters noted that 

the Services are required to consider all 

reasonable requests for exclusion, which 

is in contrast to the Services’ position 

that they cannot be required to grant an 

exclusion request, and state that ‘‘in no 

circumstances is exclusion required.’’ 

The commenters stated that the 

Services’ narrow view of section 4(b)(2) 

cannot be reconciled with the Act, or 

the history surrounding the 1978 

amendments, and there is nothing in the 

statute that confers broad discretion. 

The two sentences of 4(b)(2) require the 

Services to ‘‘consider’’ economic 

impacts, and then to consider excluding 

a particular area from the designation of 

critical habitat. The commenters 

suggested that these are not separate 


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obligations, and that it is illogical for the 

Services to suggest that Congress 

intended to require the Services to 

identify the economic impacts without 

intending for the Services to apply any 

consideration of those impacts. 

Our Response: We disagree with the 

commenter. Section 4(b)(2) of the Act 

sets forth a mandatory consideration of 

impacts and a discretionary 

consideration of possible exclusions. 

The commenter is mistaken that the Act 

requires any particular ‘‘action’’ that 

must be taken following the 

consideration of impacts. The text of the 

Act is clear in the second sentence of 

section 4(b)(2): 

The Secretary may exclude any area from 

critical habitat if [s]he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part of the 

critical habitat, unless [s]he determines, 

based on the best scientific and commercial 

data available, that the failure to designate 

such area as critical habitat will result in the 

extinction of the species concerned. 

Recent court decisions have 

resoundingly upheld the discretionary 

nature of the Secretaries’ consideration 

of whether to exclude areas from critical 

habitat. See Bldg. Indus. Ass’n v. U.S. 

Dept. of Commerce, 792 F.3d.1027 (9th 

Cir. 2015), aff’g 2012 WL 6002511 (N.D. 

Cal. Nov. 30, 2012) (unreported); Bear 

Valley Mut. Water Co. v. Jewell, 790 

F.3d. 977 (9th Cir. 2015); Cape Hatteras 

Access Pres. Alliance v. DOI, 731 F. 

Supp. 2d 15, 28–30 (D.D.C. 2010). The 

operative word is ‘‘may.’’ There is no 

requirement to exclude, or even to enter 

into a discretionary 4(b)(2) exclusion 

analysis for, any particular area 

identified as critical habitat. The 

Services do consider economic impacts, 

and apply the consideration of those 

probable incremental economic impacts 

in considering whether to enter into the 

discretionary 4(b)(2) exclusion analysis. 

Based on the results of the economic 

analysis, the Services may elect not to 

enter into the discretionary 4(b)(2) 

exclusion analysis based on economic 

impact alone. If they engage in a 

discretionary exclusion analysis, the 

Services may consider information from 

different sources (e.g., the economic 

analysis and conservation plan) in one 

section 4(b)(2) exclusion analysis. 

Comment (5): Numerous commenters 

interpreted the draft policy as a 

significant change in how the Services 

will consider exclusions under 4(b)(2). 

Our Response: The Services are not 

changing our practice of considering or 

conducting discretionary 4(b)(2) 

exclusion analyses. The 2008 

Department of the Interior Solicitor’s 

Section 4(b)(2) memorandum (M–37016, 

‘‘The Secretary’s Authority to Exclude 

Areas from a Critical Habitat 

Designation under Section 4(b)(2) of the 

Endangered Species Act’’ (Oct. 3, 2008)) 

(DOI 2008) and the regulations at 50 

CFR 424.19 provide general guidance on 

how to implement section 4(b)(2) of the 

Act, and form the basis for this policy. 

This policy generally reflects the 

practices followed by the Services, and 

provides greater transparency by 

explaining to the public how the 

Services generally exercise the 

discretion granted by the Act. 

Framework for Discretionary 4(b)(2) 

Exclusion Analysis 

Comment (6): A commenter noted 

that, rather than considering partnership 

opportunities as a benefit of exclusion, 

the Services expect that benefits of an 

existing conservation plan will continue 

regardless of critical habitat designation 

and, therefore, do not consider an 

existing plan when weighing the 

benefits of exclusion. Furthermore, the 

Services will consider these benefits to 

reduce the benefits of inclusion. The 

commenter expressed concern that this 

position could serve as a disincentive 

for voluntary conservation. 

Furthermore, the commenter suggested 

that under the new policy, the Services 

will have to review for potential 

exclusion each plan on a case-by-case 

basis, giving the Services broader 

discretion than previously held. 

Our Response: Because we received 

many similar comments, we have added 

a section, General Framework for 

Considering an Exclusion and 

Conducting a Discretionary 4(b)(2) 

Exclusion Analysis, to the preamble of 

this document to clarify the way we 

consider and conduct exclusions. 

Furthermore, this section explains the 

way in which we consider conservation 

plans and partnerships when 

conducting a discretionary 4(b)(2) 

exclusion analysis. In brief, the 

commenters appear to misunderstand 

how we account for the benefits of 

conservation plans. The accounting that 

we use (what counts as a benefit of 

exclusion, and what serves to reduce 

benefits of inclusion) is the only logical 

way of parsing the effects of 

conservation plans consistent with the 

statute. But in no way does this 

accounting discount the benefits of 

conservation plans—it just puts those 

benefits in the proper context. 

Therefore, we disagree with the 

commenters that our accounting will in 

any way act as a disincentive for 

voluntary conservation. In fact, one of 

the primary purposes of this policy is to 

explain the important role that 

conservation plans play in our 

implementation of section 4(b)(2), and 

thus, in effect, to explain the existing 

incentive for land managers to create 

those plans. 

The Services have reviewed and will 

continue to review each plan for 

potential exclusion on a case-by-case 

basis; we are continuing our existing 

practice, and not broadening our 

discretion. Adopting a policy that 

would exclude areas without an 

analysis and weighing of the benefits of 

inclusion and exclusion on a case-bycase basis, as the commenters appear to 

suggest, would not be consistent with 

the requirements of the Act or our 

implementing regulations at 50 CFR 

424.19. 

Comment (7): One commenter 

suggested that the policy should be 

revised to give greater detail on the 

processes the Services will use to 

review and exclude areas covered by 

existing conservation plans. When 

determining whether the benefits of 

exclusion outweigh the benefits of 

inclusion, the commenter noted that the 

Services will evaluate a variety of 

factors; however, no metrics were 

provided. For example, it is uncertain if 

each factor must be considered or if 

only three or four are sufficient. The 

commenter posed questions such as: 

will the Services give all factors equal 

weight or will some be deemed more 

important, and what evidence must be 

provided to demonstrate that the 

thresholds have been met? While the 

factors provide general direction, the 

commenter stated the Services provide 

no indication of how the evaluations 

will be conducted or what the 

thresholds might be. Finally, the 

commenter suggested it is unclear how 

the Services plan on evaluating whether 

the agreements are being properly 

implemented and how the Services will 

evaluate whether the permittee is 

expected to continue to properly 

implement the agreement. 

Our Response: The Services cannot 

prescribe which factors should be used 

when developing a conservation plan 

that does not have Federal involvement. 

The list provided in the draft policy and 

in this final policy is not exhaustive; 

rather, it is intended to illustrate the 

types of factors that the Services will 

use when evaluating such plans. 

Conservation plans that lead to the 

issuance of a permit under section 10 of 

the Act (including HCPs) go through a 

rigorous analysis under the Act to 

qualify for that permit. As discussed 

above, we will often exclude areas 

covered by such conservation plans. On 

the other hand, non-permitted 

conservation plans may not go through 

such analysis, and therefore must be 

more thoroughly analyzed before we 


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will consider excluding areas covered 

by these plans. 

The list of factors for non-permitted 

plans is not exclusive, not all factors 

may apply to every instance of 

evaluating a plan or partnership, and 

the listed factors are not requirements of 

plans or partnerships to be considered 

for exclusion. Criteria for non-permitted 

plans differ from criteria for permitted 

plans because the latter have already 

undergone rigorous analysis for the 

issuance of the associated permit and 

may have been measured or evaluated 

by additional criteria. For example, 

NEPA analysis has already been 

conducted before a permitted plan is 

finalized and a permit issued. 

Comment (8): Several commenters 

suggested that the methodology for 

exclusion should be defined, and the 

draft policy grants the agencies much 

more leeway to include or exclude lands 

from critical habitat designation, by 

requiring that each area considered for 

exclusion be reviewed on a case-by-case 

basis. Commenters also stated that, 

although the policy states that the 

benefits of designation of critical habitat 

will be weighed against the costs of 

such designation in a cost/benefit 

analysis, there is no clearly defined 

methodology included in the draft 

policy. Commenters stated that, when 

exercising their discretion, the Services 

should explain fully the basis, including 

the weighing of benefits, for any 

determination that exclusion is not 

warranted for any of the areas covered 

by the policy. 

Our Response: As discussed in our 

response to comment (2) above, this 

policy does not increase the discretion 

granted to the Secretaries by the Act. 

Moreover, each area considered for 

exclusion is unique, and evaluations are 

highly fact-specific; thus it is not 

possible to give a simple, formulaic 

methodology that will be used in all 

landscapes and situations. Further, it is 

important that the Secretaries retain 

discretion in assigning appropriate 

weight to benefits of inclusion and 

exclusion. Whenever the Services 

exclude areas under section 4(b)(2), they 

will explain the factors considered and 

the weighing of benefits. If the Services 

do not exclude an area that has been 

requested to be excluded through public 

comment, the Services will respond to 

this request. However, although the 

Services will explain their rationale for 

not excluding a particular area, that 

decision is committed to agency 

discretion. (Cape Hatteras Access 

Preservation Alliance v. DOI, 731 F. 

Supp. 2d 15, 29–30 (D.D.C. 2010)). 

Blanket or Presumptive Exclusions 

Comment (9): Many commenters 

suggested there is a lack of certainty that 

areas covered by permitted conservation 

plans will be excluded. Commenters 

stated that permitted conservation 

plans, including HCPs, SHAs, and 

CCAAs, provide a much greater 

conservation benefit to private land 

areas than other programs implemented 

under the Act. Many commenters asked 

that the final policy be modified to 

categorically exclude from critical 

habitat lands covered by permitted 

plans, provided that the plan is being 

properly implemented and the species 

is a covered species under the plan. 

Commenters noted that the conservation 

benefits from such agreements and the 

investment of effort and collaboration 

between the private sector and the 

Services should be acknowledged, and 

areas covered by conservation 

agreements developed and approved by 

the Services should expressly be 

excluded from designation of critical 

habitat. Commenters expressed concern 

that the need for a factual balancing test 

each time critical habitat is designated 

for a covered species poses major 

uncertainties for permittees. 

Our Response: The Services agree 

with the goal of providing greater 

certainty through this policy. However, 

each plan is different, covers different 

areas with different objectives, and will 

likely have differences in 

implementation and effectiveness, 

differences in duration, and so forth. 

Therefore, the Services must consider 

each plan on a case-by-case basis. 

As stated above, the Services do 

greatly value the commitments of 

private landowners and conservation 

partners to conserve species and their 

habitats. Even so, the Services cannot 

presumptively exclude particular areas 

from a designation of critical habitat. 

Should the Services enter into a 

discretionary 4(b)(2) exclusion analysis, 

the Act requires the Services to compare 

the benefits of including a particular 

area in critical habitat with the benefits 

of excluding the particular area. The 

Secretary may exclude an area if the 

benefits of exclusion outweigh those of 

inclusion, as long as the exclusion will 

not result in extinction of the species. 

Where they have decided to exclude an 

area, the Services must provide a 

reasonable consideration of factors on 

each side of the balance. The Services’ 

draft policy and this final policy 

articulate clearly that the Services will 

give great weight and consideration to 

partnerships resulting from the 

development of HCPs, SHAs, and 

CCAAs. Additionally, the Services will 

give great weight to the conservation 

measures delivered on the ground by 

the plans mentioned above. The weight 

of the conservation measures will be 

applied to reduce the benefits of 

inclusion of that particular area in 

critical habitat, and in many cases the 

benefits of exclusion will outweigh the 

benefits of inclusion. 

However, a permitted plan and a 

critical habitat designation may further 

different conservation goals. A 

permitted plan for a covered species 

addresses certain specific activities in a 

discrete area. It is designed to mitigate 

or minimize impacts from specific 

projects. By contrast, we designate 

critical habitat to conserve a species 

throughout its range (and sometimes 

beyond) in light of the varying threats 

facing the species. Thus, in a 

discretionary 4(b)(2) exclusion analysis, 

the Services must undertake a thorough 

balancing analysis for those areas that 

may be excluded, and cannot presume 

that the fact pattern is the same for each 

specific instance of a general category of 

plans. 

Comment (10): Despite 

acknowledging the utility of nonpermitted private and non-Federal 

conservation plans and partnerships, 

several commenters expressed the 

concern that the exclusion of these areas 

is not automatically guaranteed. Instead, 

the commenters noted that the Services 

will ‘‘sometimes exclude specific areas’’ 

from a critical habitat designation based 

on the existence of these plans or 

partnerships. In order to be successful, 

commenters stated private/non-Federal 

plans must be supported by the Services 

and automatically excluded from 

critical habitat designations. If not, 

future conservation plans may be at risk 

because applicants will feel uncertainty 

regarding the utility of their efforts. 

Commenters requested the Services to 

codify this change and ensure that land 

protected through voluntary 

conservation efforts will not be 

subjected to critical habitat overlays. 

Our Response: Please see our 

response to the previous comment. Just 

as the Services cannot automatically 

guarantee exclusion of permitted 

conservation plans, we cannot 

presumptively exclude, or automatically 

exclude, private and non-Federal plans. 

When undertaking the discretionary 

4(b)(2) exclusion analysis, the Services 

are obligated by section 4(b)(2) to weigh 

the benefits of inclusion and exclusion. 

The Services conduct this evaluation on 

a case-by-case, fact-specific basis. In this 

context, automatically excluding certain 

classes of lands or certain classes of 

agreements would be arbitrary. 


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However, as noted above, the Services 

do highly value private and non-Federal 

conservation plans and partnerships, 

and our objective is to encourage 

participation in voluntary conservation 

planning and collaborative partnerships. 

When entering into the discretionary 

4(b)(2) exclusion analysis, the Services 

will consider fully the value and 

benefits of such plans and partnerships. 

The Services acknowledge that such 

programs and partnerships can 

implement conservation actions that the 

Services would be unable to accomplish 

without private and non-Federal 

landowners and partners. 

Comment (11): Certain States 

requested the addition of a policy 

element to categorically or 

presumptively exclude all lands 

managed by State wildlife agencies. 

They stated that the Services should 

consider partnerships with State 

wildlife agencies similarly to the way 

they consider partnerships with Native 

American Tribes, and exclude lands 

managed by the State as they do Tribal 

lands. Whether a State conservation 

plan has been vetted through the public 

process should not have any relevance 

to the exclusion of such lands from 

critical habitat. 

Our Response: As noted above, the 

Services must follow the direction of the 

Act and identify those lands meeting the 

definition of ‘‘critical habitat,’’ 

regardless of landownership. It is only 

after the identification of lands that 

meet the definition of ‘‘critical habitat’’ 

that we can consider other relevant 

factors. It appears that the commenter is 

requesting presumptive exclusion of 

specific State lands without a case-bycase analysis. As discussed above, the 

Act does not give the Secretaries the 

authority to exclude areas from critical 

habitat without first undertaking a 

discretionary 4(b)(2) exclusion analysis. 

As we consider areas for potential 

exclusion, as discussed throughout this 

policy, we give great weight and 

consideration to conservation 

partnerships, including those 

partnerships with States and Tribes. The 

Services note that S.O. 3206 has no 

applicability to State governments or 

State lands. Even in the context in 

which it applies, S.O. 3206 does not 

provide a blanket exclusion or 

automatic exemption of Tribal lands. 

Comment (12): To further provide 

incentives for landowners or local and 

State governments to enter into 

conservation plans, agreements, or 

partnerships, a commenter stated the 

Services should, if they conduct a 

discretionary exclusion analysis, always 

exclude such areas from critical habitat 

designation if the benefits of exclusion 

outweigh the benefits of inclusion. The 

commenter stated that exclusion may 

incentivize parties to participate in 

future conservation plans or 

partnerships, especially the prelisting 

conservation measures encouraged by 

the Fish and Wildlife Service’s recent 

draft policy regarding voluntary 

prelisting conservation actions. 

Our Response: The Services agree that 

recognition of partnerships through 

exclusion from critical habitat may 

serve to remove any real or perceived 

disincentive that a designation of 

critical habitat may produce, and 

encourage parties to further engage in 

future conservation planning efforts. 

Should the Services elect to conduct a 

discretionary 4(b)(2) exclusion analysis, 

and if the benefits of exclusion 

outweigh the benefits of inclusion, in 

almost all situations we expect to 

exclude that particular area. Although 

the Services find it necessary to retain 

some discretion for the Secretaries 

because we cannot anticipate all fact 

patterns that may occur in all situations 

when considering exclusions from 

critical habitat, it is the general practice 

of the Services, consistent with E.O. 

12866, to exercise this discretion to 

exclude an area when the benefits of 

exclusion outweigh the benefits of 

inclusion. However, the Secretaries may 

not exclude a particular area if the 

exclusion will result in the extinction of 

the species concerned. Please see the 

section General Framework for 

Considering an Exclusion and 

Conducting a Discretionary 4(b)(2) 

Exclusion Analysis, above, for more 

information regarding the exclusion 

process. 

Plans Permitted Under Section 10 of the 

Act 

Comment (13): One commenter 

suggested that the draft policy should 

not contain a categorical rejection of an 

agreement with ‘‘guidelines’’ for habitat 

management. Even if the agreement 

provides guidelines relating to the 

species’ habitat, rather than specifically 

addressing habitat, the commenter 

noted that if those guidelines were 

followed they may provide a greater 

benefit to the species than would a 

critical habitat designation. Finally the 

commenter noted that each plan should 

be analyzed individually for its benefit 

to the species; this would support the 

Services’ stated policy of encouraging 

the development of section 10 

agreements. 

Our Response: We agree with the 

commenter regarding plans with 

guidelines that, if followed, may 

provide a greater benefit to a species 

than would a designation of critical 

habitat. However, should the Services 

choose to enter into the discretionary 

4(b)(2) exclusion analysis for a plan that 

only has guidelines, the Services will 

evaluate the benefits of inclusion and 

exclusion based on the specific facts of 

the plan in question. We have removed 

the language regarding guidelines from 

the final policy. 

Comment (14): One commenter stated 

that the Services should not designate or 

exclude mere portions of HCPs. An 

HCP, taken as a whole, is designed to 

meet the conservation needs of the 

species and is specifically developed to 

meet those needs while still allowing 

certain development impacts to occur. 

The commenter suggested the policy 

would allow the Services to exclude just 

beneficial parts of an approved HCP, 

and designate those areas that are less 

desirable but still an integral component 

of the HCP. 

Our Response: If the HCP has been 

approved and permitted, and if the 

Services undertake a discretionary 

4(b)(2) exclusion analysis and find that 

the benefits of exclusion outweigh the 

benefits of inclusion, we intend to 

exclude the entire area covered by the 

HCP from the final designation of 

critical habitat for the species. 

Comment (15): One commenter stated 

that the Services should consider 

excluding areas covered by HCPs and 

SHAs that are under development, but 

not yet completed or fully implemented. 

The draft policy proposes to give very 

little weight to section 10 agreements 

that are in process but not formalized. 

The commenter expressed a concern 

that not giving weight to developing 

voluntary conservation plans could 

greatly reduce incentives for private 

landowners and other entities to 

continue these efforts. The Services 

should analyze in-progress agreements 

individually. The agreements will vary 

greatly in scope, coverage, and the level 

of protections granted to the species and 

the extent of progress towards a formal 

agreement. If a comprehensive 

agreement is close to being formalized at 

the time of critical habitat designation, 

the commenter suggested there is no 

reason for the Services to designate that 

land as critical habitat and ignore the 

effort of the parties involved to benefit 

the species and its habitat. To ignore 

those efforts would discourage other 

landowners from pursuing similar plans 

or partnerships in the future, 

undermining future cooperation for the 

benefit of the species. Finally, the 

commenter suggested that the policy 

should be revised to give greater detail 

on the processes the Services will use to 

efficiently review and exclude areas 


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covered by conservation plans being 

developed. 

Our Response: Should the Services 

elect to undergo a discretionary 4(b)(2) 

exclusion analysis of an area in which 

a voluntary conservation plan is being 

developed, we will consider the facts 

specific to the situation. If a draft HCP 

has undergone NEPA and section 7 

analysis, the Services could evaluate 

that plan under the provisions of this 

policy that are applicable to 

conservation plans and partnerships for 

which no section 10 permit has been 

issued. The track record of the 

partnership and the time taken to 

develop the draft HCP would be 

considerations in any discretionary 

4(b)(2) exclusion analysis. The Services 

would not ignore ongoing efforts to 

develop plans. Some of the factors we 

consider are the degree of certainty that 

the plan will be implemented, that it 

will continue into the future, and that 

it may provide equal or greater 

protection of habitat than would a 

critical habitat designation. Therefore, 

the Services would expect to evaluate 

draft permitted plans on a case-by-case 

basis, and may evaluate them under the 

non-permitted-plans-and-partnerships 

sections of this policy. 

Comment (16): A commenter asked 

the Services to clarify that not every 

conservation plan will undergo a 

weighing and balancing process. 

Paragraph 3 of the draft policy states: 

‘‘When we undertake a discretionary 

exclusion analysis, we will always 

consider areas covered by an approved 

CCAA/SHA/HCP, and generally exclude 

such areas from a designation of critical 

habitat if three conditions are 

met. . . .’’ The commenter questioned 

whether the discretionary analysis is 

triggered by potential ‘‘severe’’ impacts 

(as described in step 2 of the M Opinion 

at p. 17: ‘‘if [she] deems the impacts of 

the designation severe enough, [she] 

will proceed with an exclusion analysis 

under section 4(b)(2)’’) on a particular 

area covered by a CCAA/SHA/HCP, or 

whether the presence of such 

conservation plan(s) triggers the 

discretionary analysis regardless of 

impacts. If the former, the Services 

should clarify that only the potentially 

affected conservation plan(s) will be 

subjected to the discretionary exclusion 

analysis. If the latter, the commenter 

expressed a concern that the result of 

such a policy is to significantly limit 

Secretarial discretion. 

Our Response: The Services are not 

limiting Secretarial discretion through 

this policy. The presence of a 

conservation plan or partnership does 

not mandate a discretionary 4(b)(2) 

exclusion analysis. If the Secretary 

decides to enter into the discretionary 

4(b)(2) exclusion analysis, the Services 

may consider, among other things, 

whether a plan is permitted, or whether 

we receive information during a public 

comment period that we should 

consider a certain plan for exclusion. 

However, it is possible that the 

Secretaries will not conduct a 

discretionary 4(b)(2) exclusion analysis 

for each and every conservation plan. 

As noted in the final rule revising 50 

CFR 424.19, the Secretaries are 

particularly likely to conduct this 

discretionary analysis if the 

consideration of impacts mandated 

under the first sentence suggests that the 

designation will have significant 

incremental impacts. 

Tribal Comments 

Comment (17): Numerous Tribes have 

asked to have their lands presumptively 

or categorically excluded from critical 

habitat designation. The commenters 

stated that, absent evidence that 

exclusion would lead to the extinction 

of the species, Tribal lands should 

always be excluded. While the Tribes 

appreciate the Services giving great 

weight and consideration to excluding 

Tribal lands, Tribes would prefer their 

lands to be categorically excluded. 

Our Response: While the Services 

recognize their responsibilities and 

commitments under Secretarial Order 

3206 and in light of Tribal sovereignty, 

the statute is clear on the process of 

designating critical habitat, and does not 

allow for presumptive exclusion of any 

areas, regardless of ownership, from 

critical habitat without conducting a 

discretionary 4(b)(2) exclusion analysis. 

If we determine that Tribal lands meet 

the definition of ‘‘critical habitat,’’ the 

statute requires we identify those lands 

as meeting that definition. However, as 

discussed in the draft and this final 

policy, great weight and consideration 

will be given to Tribal partnerships and 

conservation plans if the Services enter 

into the discretionary 4(b)(2) exclusion 

analysis. 

Comment (18): Many commenters 

expressed that the designation of critical 

habitat on Tribal lands would have an 

unfortunate and substantial negative 

impact on the working relationships the 

Services and Tribes have established. 

The Services should state that, when 

they undertake a discretionary 

exclusion analysis, they will always 

consider exclusions of Tribal lands and 

not designate such areas, unless it is 

determined such areas are essential to 

conserve a listed species. 

Our Response: The Services recognize 

our trust responsibilities with Tribes, 

and value our collaborative 

conservation partnerships. Secretarial 

Order 3206, which provides guidance to 

the Departments in exercising their 

statutory authorities—but does not 

modify those authorities—states: 

Critical habitat shall not be designated in 

such areas unless it is determined essential 

to conserve a listed species. In designating 

critical habitat, the Services shall evaluate 

and document the extent to which the 

conservation needs of the listed species can 

be achieved by limiting the designation to 

other lands. 

Therefore, the Services generally will 

not designate critical habitat on Tribal 

lands if the conservation needs of the 

listed species can be achieved on other 

lands. However, if it is determined such 

areas are essential to conserve the listed 

species, then, as discussed in the 

previous comment response, the 

Services will give great weight and 

consideration to Tribal partnerships and 

conservation plans if the Services enter 

into the discretionary 4(b)(2) exclusion 

analysis. 

Comment (19): Several Tribes 

expressed a concern that the new policy 

will result in greater economic and 

social burdens on Tribes. Tribes bear a 

disproportionate burden through the 

consultation process under section 7 of 

the Act, as compared to State and local 

governments and private citizens, 

because so many basic Tribal functions 

are contingent on actions authorized, 

funded, or carried out by Federal 

agencies. Therefore, the commenters 

stated that, where Tribal lands are 

designated as critical habitat, the 

proposed regulations and policies will 

require an onerous, time-consuming, 

bureaucratic process that infringes on 

Tribal sovereignty and treaty rights and 

frustrates the ability of the Tribe to 

provide basic government services and 

achieve wildlife-conservation and 

economic-development goals. 

Our Response: While the Services 

recognize that a critical habitat 

designation may have real or perceived 

direct and indirect impacts, the Services 

are committed to assisting Tribes in 

conserving listed species and their 

habitats on Tribal lands, where 

appropriate. Where collaborative 

conservation partnerships and programs 

have been developed with Tribes, many 

of these real or perceived impacts have 

been ameliorated or relieved. The 

revised regulations and new policy are 

intended to provide clarity, 

transparency, and certainty regarding 

the development and designation of 

critical habitat, and provide for a more 

predictable and transparent criticalhabitat-exclusion process. All three 

initiatives work together to provide 

greater clarity to the public and Tribes 


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as to how the Services develop and 

implement critical habitat designations. 

Comment (20): One commenter stated 

that, as written, the policy fails to 

acknowledge the sovereignty of Tribes 

and Tribal self-governance by noting 

only that ‘‘Tribal concerns’’ will be 

considered in the discretionary 

exclusion analysis. These proposed 

regulations and policies represent a 

missed opportunity to effectuate the 

letter and spirit of Secretarial Orders 

3206 and 3335, and to ameliorate the 

potentially harsh consequences on 

Tribes of the proposed regulatory 

revisions for designating critical habitat. 

Of even more concern, the Service 

completely ignores the fundamental 

disagreement concerning the 

applicability of the Endangered Species 

Act to Tribes. 

Our Response: Secretarial Order 3206 

explicitly recognizes the right of Tribes 

to participate fully in the listing process, 

including designation of critical habitat. 

The Order states: 

Critical habitat shall not be designated in 

such areas unless it is determined essential 

to conserve a listed species. In designating 

critical habitat, the Services shall evaluate 

and document the extent to which the 

conservation needs of the listed species can 

be achieved by limiting the designation to 

other lands. 

However, S.O. 3206 does not limit the 

Services’ authorities under the ESA or 

preclude the Services from designating 

Tribal lands or waters as critical habitat, 

nor does it suggest that Tribal lands or 

waters cannot meet the Act’s definition 

of ‘‘critical habitat.’’ We are directed by 

the Act to identify areas that meet the 

definition of ‘‘critical habitat’’ (i.e., 

occupied lands 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 landownership. While S.O. 

3206 provides important guidance, it 

does not relieve or supersede the 

Secretaries’ statutory obligation to 

identify as critical habitat those specific 

areas meeting the definition of ‘‘critical 

habitat’’ and to designate such areas 

unless otherwise exempted by statute or 

excluded following the discretionary 

4(b)(2) exclusion analysis. 

Further, following the language and 

intent of S.O. 3206, when we undertake 

a discretionary 4(b)(2) exclusion 

analysis we will always consider 

exclusions of Tribal lands prior to 

finalizing a designation of critical 

habitat, and will give great weight to the 

collaborative conservation partnerships 

the Services have with the Tribes, as 

well as Tribal conservation programs 

and plans that address listed species 

and their habitats. The effects of critical 

habitat designation on Tribal 

sovereignty and the Services’ working 

relationship with Tribes are relevant 

impacts that the Services will generally 

consider in the context of any exclusion 

analysis under Section 4(b)(2). See, e.g., 

Center for Biological Diversity v. Norton, 

240 F. Supp. 2d 1090, 1105 (D. Ariz. 

2003). 

State Comments 

Comment (21): One commenter asked 

the Services to use the same standards 

for evaluating State conservation plans 

as those used for evaluating federally 

permitted plans for possible exclusions. 

The commenter noted that in the draft 

policy the Services have outlined 

different conditions for exclusion for 

HCPs, SHAs, and CCAAs versus all 

other conservation plans (including 

State plans). The former must only meet 

three conditions, while the latter are 

evaluated based on eight factors. 

Justification is not provided for why two 

different sets of criteria are being used. 

For example, HCP/SHA/CCAA plans 

need only be ‘‘properly implemented’’ 

while other conservation plans must 

show not only implementation but also 

‘‘success of the chosen mechanism.’’ No 

explanation for this difference is 

provided. Furthermore, the commenter 

noted that all plans should be held to 

the same threshold for exclusion 

consideration. States spend enormous 

amounts of time to craft speciesconservation plans. Finally, the 

commenter stated that plans are 

developed and implemented based on 

extensive scientific expertise housed in 

State wildlife agencies and they are 

crafted to meet State and Federal laws, 

rules, and regulations applicable to the 

protection of wildlife. 

Our Response: The Services recognize 

that considerable time and expertise go 

into creating State management plans. 

Any requests for exclusions by States 

will be considered, whether based on a 

State management plan or for a State 

wildlife area. The Services need to 

evaluate any exclusion request on a 

case-by-case, fact-specific basis. The 

Services recognize that not all State 

plans are the same, and not all plans are 

designed to meet applicable Federal 

laws, rules, and regulations. The eight 

factors presented in this final policy 

regarding non-permitted plans are 

factors the Services will consider when 

conducting a discretionary 4(b)(2) 

exclusion analysis evaluating a State 

conservation plan or wildlife 

management area for exclusion. We will 

not hold State or other non-Federal 

conservation plans to higher standards 

than permitted plans; the list of eight 

factors simply indicates the types of 

factors we will evaluate in any 

conservation plan. It should be noted 

that HCPs and SHAs have already been 

subjected to rigorous analyses of 

numerous criteria through the 

permitting process that are not expressly 

listed in the policy. 

Comment (22): A commenter 

suggested that the Services add the 

following language to the policy 

regarding State lands: 

We recognize Congress placed high value in 

working with State partners in the 

conservation of threatened and endangered 

species and we will give great weight to the 

recommendations from our State partners 

when evaluating critical habitat on State 

lands. Many States have land holdings that 

cross a broad spectrum of uses that can range 

from lands primarily managed for 

conservation purposes while other lands are 

owned to provide maximum economic return 

as in the case of some State school lands. The 

Service, in weighing the benefits of inclusion 

versus exclusion of State lands, will conduct 

a discretionary analysis if the State indicates 

a wish to be excluded from a critical habitat 

designation and provides a detailed 

assessment on the merits of their requested 

exclusion. The Service is not under 

obligation to exclude those State lands but 

will use the State’s assessment as we weigh 

the expected gain in conservation value for 

inclusion of a tract of State land in a final 

critical habitat designation. 

Our Response: As stated above, the 

Services decline to add a specific policy 

element suggesting that we would give 

great weight to recommendations of our 

State partners when evaluating critical 

habitat on State lands. The Services 

agree with the commenter’s premise that 

conservation of endangered and 

threatened species cannot be done 

without cooperation of State partners. 

We also agree that we generally will 

consider exclusions of State lands if 

requested by States; however, we are 

under no obligation to exclude such 

lands, even where requested. 

Comments Regarding Federal Lands 

Comment (23): One commenter stated 

that the Services should not ‘‘focus’’ 

designation of critical habitat on Federal 

lands, nor assume that the benefits of 

critical habitat designations on Federal 

lands ‘‘are typically greater’’ than the 

benefits of excluding these areas. 

Our Response: When designating 

critical habitat, the Services follow the 

Act and implementing regulations to 

develop a designation based solely on 

the best scientific data available, and 

that identifies physical or biological 

features essential to the conservation of 

a species or areas that are essential for 

the conservation of a species. This 

initial identification of eligible areas 


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that meet the definition of ‘‘critical 

habitat’’ is conducted without regard to 

landownership or the identity of land 

managers. Before finalizing a 

designation of critical habitat, the 

Services must consider economic 

impacts, the impact on national 

security, and any other relevant impact 

of designating critical habitat. It is 

following this consideration of potential 

impacts that the Secretary may then 

exclude particular areas from critical 

habitat, but only if the exclusion will 

not result in the extinction of the 

species. 

The Services look to the 

Congressional intent of the Act—in 

particular, section 2(c) states that all 

Federal agencies shall seek to conserve 

listed species and their habitats. 

Additionally, section 7(a)(2) of the Act 

requires Federal agencies that fund, 

authorize, or carry out projects to ensure 

their actions are not likely to destroy or 

adversely modify critical habitat. The 

commenter does not explain why the 

Services should not focus, to the extent 

practicable and allowed by the Act, on 

designation of critical habitat on Federal 

lands. Also, the commenter does not 

provide an explanation to support its 

view that the benefits of including 

Federal lands in a designation of critical 

habitat are not typically greater than 

including other areas. In fact, because 

Federal agencies are required to ensure 

that their actions are not likely to 

destroy or adversely modify critical 

habitat, the benefits of including Federal 

lands are typically greater than the 

benefits of including other areas. 

Comment (24): Another commenter 

asked the Services to consider excluding 

Federal lands that are subject to special 

management by land-management 

agencies. Congress has mandated that 

Federal lands, such as lands managed 

by the Bureau of Land Management 

(BLM) and the U.S. Forest Service, be 

available for multiple uses. The 

commenter stated the Services’ 

designation of critical habitat primarily 

on Federal lands upsets the balance 

struck in land-management decisions 

made by the agencies charged with 

administering Federal lands and, 

moreover, interferes with the directives 

established by Congress. 

Our Response: Complying with the 

Act does not interfere with other 

Federal agency mandates. The Act is 

one of many Federal mandates with 

which all Federal agencies must 

comply, and Federal agencies must use 

available discretion to take into account 

the needs of listed species when 

implementing their other duties. The 

Services are also required to comply 

with the Act as they manage their lands, 

monuments, trust resources, and 

sanctuaries for multiple purposes. It has 

been the experience of the Services that 

listing or designating critical habitat for 

species does not drastically alter 

existing management schemes of other 

Federal agencies. In those instances 

where conflicts arise, the Services have 

successfully worked with the affected 

Federal agency to reduce conflicts with 

its mission. The Services are committed 

to continuing the collaborative 

relationships with other Federal 

agencies to further conservation of 

species and their habitats. 

Comment (25): One commenter stated 

that a reasonable exclusion policy 

should allow the Services to recognize 

and consider exclusions for all types of 

conservation projects, whether they 

occur on Federal or non-Federal lands. 

The commenter understands the 

Services’ intent to reduce regulatory 

burdens on private lands. However, the 

commenter opposes a policy that would 

disqualify exclusions on Federal lands, 

while prioritizing them for recovery. 

The commenter strongly stated that 

exclusions should be based on the 

criteria outlined in section 4(b)(2) of the 

Act, whether the land is Federal or 

non-Federal. Section 4(b)(2) of the Act 

provides the Secretary the discretion to 

‘‘exclude any area from critical habitat 

if [s]he determines that the benefits of 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat,’’ but does not delineate 

whether landownership should play a 

factor in the decision to exclude lands 

from designation. 

Our Response: To the extent that the 

commenter is suggesting that 

discretionary 4(b)(2) exclusion analyses 

are done on a case-by-case basis and are 

highly fact-specific, we agree. This 

policy does not preclude exclusions of 

Federal lands; in fact, the Services have 

excluded particular Federal lands in the 

recent past. However, the Services 

maintain their policy position that 

Federal lands will typically have greater 

benefits of inclusion compared to the 

benefits of exclusion. This position is 

consistent with the purposes of the Act 

as outlined in section 2. Section 2(c)(1) 

states: 

It is further declared to be the policy of 

Congress that all Federal departments and 

agencies shall seek to conserve endangered 

species and threatened species and shall 

utilize their authorities in furtherance of the 

purposes of this Act. 

Additionally, section 7(a)(1) restates 

this responsibility and specifically 

requires all Federal agencies to consult 

with the Services to carry out programs 

for conservation of endangered and 

threatened species. Because the section 

7 consultation requirements apply to 

projects carried out on Federal lands 

where there is discretionary Federal 

involvement or control, designation of 

critical habitat on Federal lands is more 

likely to benefit species than 

designation of critical habitat on private 

lands without a Federal nexus. 

Comment (26): A commenter 

suggested that the Services should 

create an incentive for Federal land 

managers. The Services could consider 

a similar approach to Federal land 

exclusions that are provided for 

Department of Defense installations. 

Applying this same standard to all 

Federal lands, the commenter stated, 

would create a stronger incentive for 

more agencies to live up to the 

requirements of section 7(a)(1) of the 

Act. 

Our Response: Congress intended for 

Federal agencies to participate in the 

conservation of endangered and 

threatened species. As discussed above, 

section 2(c)(1) of the Act clearly states 

this responsibility. Additionally, section 

7(a)(1) restates this responsibility and 

specifically requires all Federal agencies 

to consult with the Services to carry out 

programs for conservation of 

endangered and threatened species. 

Section 7(a)(2) of the Act requires 

Federal agencies to consult with the 

Services to ‘‘insure that any action 

authorized, funded, or carried out by 

such agency . . . is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of [critical] habitat 

of such species.’’ 

Exemption of Department of Defense 

lands from critical habitat is mandated 

under section 4(a)(3)(B)(i) of the Act, 

and is thus entirely different from 

discretionary exclusions of particular 

lands from a designation of critical 

habitat under section 4(b)(2). Exemption 

of an area covered under an INRMP 

under the Sikes Act is based on the 

statutory condition that the Secretary 

has determined the plan provides a 

benefit to a species, whereas an 

exclusion of a particular area is based 

on the discretionary 4(b)(2) weighing of 

the benefits of inclusion and exclusion. 

Comments on Economics 

Comment (27): A commenter asked 

the Services to provide details of how 

costs and benefits are evaluated. The 

draft policy does not clearly define how 

benefits and costs will be determined, 

giving the Services a great deal of 

discretion. The commenter noted that 

the draft policy does not adequately 

explain how the consideration of 


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economic impacts will be applied 

during the exclusion process. The 

phrase ‘‘nature of those impacts’’ in the 

draft policy fails to provide a 

description that will give adequate 

notice of what will actually be 

considered. 

Our Response: The policy is not 

intended to present a detailed treatment 

of economic impact analysis 

methodology. The Summary of 

Comments and Recommendations 

section of the Service’s final rule 

regarding revisions to the regulations for 

impact analyses of critical habitat, 

which was published on August 28, 

2013 (78 FR 53058), contains a 

discussion of cost and benefit analysis 

of critical habitat designations. 

To aid in the consideration of 

probable incremental economic impacts 

under section 4(b)(2) of the Act, the 

Services conduct an economic analysis 

of the designation of critical habitat, 

which satisfies the mandatory 

consideration of economic impacts. 

Should the Secretaries consider 

excluding a particular area from critical 

habitat, the economic analysis is one 

tool the Secretaries may use to inform 

their decision whether to exclude the 

particular area. 

The commenter points out that the 

phrase ‘‘nature of those impacts’’ is not 

defined. The Services intentionally did 

not define this phrase, because it has 

been the experience of the Services that 

economic impacts of critical habitat 

designations vary widely, making it 

infeasible to quantify the level of 

impacts that would trigger further 

consideration in all cases. 

Comment (28): Because the Services 

use an incremental approach to 

estimating economic impacts, one 

commenter suggested that the economic 

impacts of critical habitat are vastly 

underestimated. The commenter 

suggested the Services should conduct 

an economic analysis that evaluates the 

cumulative and co-extensive costs of 

critical habitat. Focusing on incremental 

economic impacts does not provide an 

accurate picture, as it discounts the full 

financial implications of a listing for 

landowners, businesses, and 

communities. The commenter expressed 

the opinion that the incremental 

approach effectively shifts the economic 

costs of critical habitat designations to 

the listing process under the Act where 

the Service is prohibited from 

considering costs. Ultimately, because 

this approach will result in fewer costs 

being attributed to critical habitat 

designation, it will greatly reduce the 

usefulness of the 4(b)(2) process. 

Our Response: We disagree. Our final 

rule amending 50 CFR 424.19, 

published August 28, 2013 (78 FR 

53058), codified the use of the 

incremental method for conducting 

impact analyses, including economic 

analyses, for critical habitat 

designations. That final rule contains 

responses to public comments that 

clearly lay out the Services’ rationale for 

using the incremental method. Please 

refer to that rule for more information. 

Evaluating incremental impacts that 

result from a regulation being 

promulgated, rather than considering 

coextensive impacts that may be 

ascribed to various previous regulations, 

is further supported by Executive Order 

12866, as applied by OMB Circular 

A–4. 

Comment (29): Congress expressly 

required the Secretaries to consider 

economic impacts when they designate 

critical habitat (16 U.S.C. 1533(b)(2)). A 

commenter stated the Services have 

interpreted this requirement to limit 

their use of the economic analysis to the 

exclusion process. The commenter 

further noted that the draft policy 

restricts discussions of the economic 

impacts from critical habitat designation 

to determinations of whether an area 

will be excluded from a critical habitat 

designation. Economic concerns are 

arguably the most important 

consideration for those being regulated. 

The commenter expressed the opinion 

that the designation of critical habitat 

has economic impacts on States, 

counties, local governments, and 

landowners. These impacts include 

increased regulatory burdens that delay 

projects. The commenter stated it is 

important that the Services recognize 

the economic impacts of critical habitat 

designation and consider those impacts 

throughout the designation process, as 

required by Congress under the 

Endangered Species Act. The 

commenter asked that the draft policy 

be amended to emphasize use of 

economic impacts analyses in each stage 

of the designation process, not just 

exclusion of an area from a critical 

habitat designation. 

Our Response: We agree that the 

mandatory consideration of economics 

is an important step in the designation 

of critical habitat. However, we disagree 

that economic impact analyses should 

be used at each step of the designation 

process. The process of developing a 

designation is based on the best 

available scientific information, and 

consists of a determination of what is 

needed for species conservation. 

Congress expressly prohibited the 

Secretaries from using anything other 

than the best available scientific 

information in identifying areas that 

meet the definition of ‘‘critical habitat.’’ 

However, Congress expressly required 

the Secretaries to consider economic 

impacts, national-security impacts, and 

other relevant impacts before finalizing 

the critical habitat designation. 

The Services prepare an economic 

analysis of each proposed designation of 

critical habitat and may use that 

information in discretionary 4(b)(2) 

exclusion analyses. Our final rule that 

amended our implementing regulations 

at 50 CFR 424.19, which was published 

on August 28, 2013 (78 FR 53058), 

contains more information regarding 

impact analyses, including economics. 

This final policy is focused on the 

discretionary process of excluding areas 

under section 4(b)(2). 

Comment (30): A commenter stated 

that the economic impact of critical 

habitat designations on the exercise of 

rights to Federal lands is significant and 

should not be discounted. In the 

preamble to the draft policy, the 

Services state that they ‘‘generally will 

not consider avoiding the administrative 

or transactional costs associated with 

the section 7 consultation process to be 

a ‘benefit’ of excluding a particular area 

from a critical habitat designation in any 

discretionary exclusion analysis.’’ The 

commenter suggested this statement 

ignores that administrative and 

transactional costs of critical habitat 

designations can be significant, 

particularly when critical habitat will 

cover a large area. The commenter 

stated that Federal agencies are not the 

only entities that must absorb the costs 

of section 7 consultation. 

Administrative and transactional costs 

are also borne by non-Federal parties, 

such as applicants for permits or 

licenses. The commenter further noted 

that, if the exclusion analysis is limited 

to non-Federal lands, where section 7 

consultation is often not triggered, the 

economic benefits of exclusion will 

rarely be considered. For proponents of 

large projects on Federal lands, these 

economic benefits of exclusion can be 

significant. 

Our Response: We agree with the 

commenter that the Services should 

consider the indirect effects resulting 

from a designation of critical habitat. In 

fact, the Services are required to 

evaluate the direct and indirect costs of 

the designation of critical habitat under 

the provisions of Executive Order 

12866, and we do so through the 

economic analyses of the designation of 

critical habitat. However, as noted 

previously, we do not consider 

avoidance of transactional costs 

associated with section 7 consultation to 

be a benefit of exclusion. Rather, those 

costs represent the inherent 

consequence of Congress’ decision to 


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require Federal agencies to avoid 

destruction or adverse modification. 

Please refer to the Summary of 

Comments and Recommendations 

section of the final rule amending 50 

CFR 424.19 (78 FR 53058, August 28, 

2013), particularly our response to 

Comment 44, for more information 

regarding direct and indirect costs. 

Comment (31): One commenter 

suggested that the Services should also 

consider potential economic benefits of 

inclusion. Economic benefits of 

designating critical habitat include a 

potentially faster rate of recovery for the 

species, which could result in less longterm costs for the agency and partners. 

Our Response: The Act requires a 

mandatory consideration of the 

economic impact of designating a 

specific area as critical habitat. The 

Services interpret this statement to be 

inclusive of benefits and costs that 

result from the designation of critical 

habitat. This interpretation is further 

supported by Executive Order 12866 as 

clarified in OMB Circular A–4. The 

Services do consider non-consumptive 

use benefits, such as hiking, increased 

tourism, or appreciation of protected 

open or green areas, in a qualitative 

manner where credible data are 

available. Further, in rare 

circumstances, when independent and 

credible research can be conducted on 

the benefits for a particular species, that 

information is used. However, for most 

species, credible studies and data 

related to potential economic benefits of 

designating their habitat as critical 

habitat are not available or quantifiable. 

Comment (32): One commenter 

expressed the opinion that listing 

decisions under the Act have real 

economic impacts for State and local 

governments, through restriction on 

rangeland grazing, hunting, tourism, 

and development of resources on public 

and private lands. It may well be that, 

in some circumstances, the economic 

benefits of exclusion outweigh the 

conservation benefits of inclusion. The 

commenter suggested that such 

situations should be recognized by the 

Services and granted exclusion in order 

to provide maximum flexibility for a 

balanced mix of conservation and 

economic activities. 

Our Response: The Services recognize 

that the listing of species may result in 

an economic impact; however, the Act 

does not allow the consideration of 

potential economic impacts when 

listing a species. The Act expressly 

limits the basis of our determination of 

the status of a species to the best 

scientific and commercial information 

available. The Services also cannot 

consider the potential economic impact 

of listing a species in an exclusion 

analysis under section 4(b)(2) of the Act. 

This consideration of economics in the 

discretionary 4(b)(2) exclusion analysis 

is to be based on the incremental 

impacts that result solely from the 

designation of critical habitat, and not 

those impacts that may result from the 

listing of the species. 50 CFR 424.19. 

We assume the commenter is referring 

to considerations of economics prior to 

finalizing a designation of critical 

habitat. The Services always consider 

potential economic impacts that may 

result from the designation of critical 

habitat. The purpose of the second 

sentence of section 4(b)(2) is to 

authorize the Secretaries to exclude 

particular areas from a designation if the 

benefits of exclusion outweigh the 

benefits of inclusion. The Services 

recognize that there may be 

circumstances when the economic 

benefits of exclusion (together with any 

other benefits of exclusion) do in fact 

outweigh the conservation benefits of 

inclusion (together with any other 

benefits of inclusion). In that case, the 

Services may decide to exclude the 

particular area at issue (unless exclusion 

will result in extinction of the species). 

The Services will evaluate the best 

available scientific information when 

undertaking a discretionary 4(b)(2) 

exclusion analysis. 

Comment (33): A commenter noted 

that the Services should consider 

financial commitments made in HCPs, 

SHAs, and CCAAs. Proponents could 

commit serious finances only to have 

the area later designated as critical 

habitat. 

Our Response: The Services do not 

consider the financial commitments 

made in HCPs, SHAs, or CCAAs, as a 

standalone factor when evaluating areas 

for exclusion. The Services, however, do 

consider the conservation benefits 

associated with financial commitments 

of a plan to reduce the benefits of 

including a particular area in critical 

habitat. The fostering and maintenance 

of conservation partnerships can be a 

benefit of exclusion, and can serve as an 

incentive to future financial 

commitments to further conservation. 

The Services greatly value the on-theground conservation delivered by these 

partnerships and their associated 

permitted plans. 

Comments on National Security 

Comment (34): A commenter asked 

the Services to clarify how nationalsecurity concerns will be considered. 

The commenter stated that the Services 

say they will give ‘‘great weight’’ to 

these concerns, but this phrase is a 

subjective term and could use 

additional clarity. The use of the phrase 

implies national-security concerns will 

always outweigh the benefits of 

inclusion. The commenter recommends 

expanding or altering this phrase to 

better clarify how national-security 

concerns will be considered. 

Our Response: The Services do not 

consider the phrase ‘‘great weight’’ to 

imply a predetermined exclusion based 

on national-security concerns, as the 

commenter is suggesting. The Services 

always consider for exclusion from the 

designation areas for which DoD, DHS, 

or another Federal agency has requested 

exclusion based on an assertion of 

national-security or homeland-security 

concerns. The agency requesting such 

exclusion must provide a reasonably 

specific rationale for such exclusion. 

The Service will weigh heavily those 

concerns regarding the probable 

incremental impact to national security 

as a result of designating critical habitat. 

This does not mean the Services will 

then in turn give little weight to any 

benefits of inclusion. It is not the 

Services’ intent to predetermine the 

outcome of a discretionary 4(b)(2) 

exclusion analysis. 

General Comments 

Comment (35): One commenter asked 

for an explanation of how the two 

proposed critical habitat rules and draft 

policy will work together, discussing 

the challenges and benefits they provide 

together. E.O. 13563 states that 

regulations ‘‘must promote 

predictability and reduce uncertainty.’’ 

Our Response: The regulations and 

policy are intended to provide clarity, 

transparency, and certainty regarding 

the development and implementation of 

critical habitat, and provide for a more 

predictable and transparent process for 

designating critical habitat. All three 

initiatives work together to provide 

greater clarity to the public as to how 

the Services develop and implement 

critical habitat designations. The rule 

amending 50 CFR part 424 provides 

new definitions and clarifications that 

will inform the process of designating 

critical habitat. The rule revising the 

definition of ‘‘destruction or adverse 

modification’’ (at 50 CFR 402.02) 

redefines that term and clarifies its role 

in section 7 consultations. This policy 

focuses on how the Services implement 

section 4(b)(2) of the Act, with regard to 

excluding areas from critical habitat 

designations. 

Comment (36): The draft policy states 

that it will be prospective only and will 

not apply to any ‘‘previously 

completed’’ critical habitat designations. 

One commenter stated the policy should 

more clearly state that the revised 


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language will not be used in reassessing 

or reassigning critical habitat; only 

future designations of critical habitat 

will fall under the new policy. 

Our Response: The commenter is 

correct that this final policy does not 

apply to designations of critical habitat 

finalized prior to the effective date of 

this policy (see DATES, above). This 

policy applies to future designations of 

critical habitat that are completed after 

the effective date of this policy. If the 

Services choose to revise previous 

designations, the Services will use the 

operative regulations and policies in 

place at the time of such revision. Of 

course, as we have indicated elsewhere, 

this policy does not establish binding 

standards that mandate particular 

outcomes. 

Comment (37): We received many 

comments that the policy proposed 

changes that were arbitrary and without 

merit, because they will deprive private 

property owners and States of 

incentives and tools to conserve species 

and their habitat. 

Our Response: The Services have 

developed, and continue to develop, 

considerable tools to assist landowners 

in the conservation of species and their 

habitats. Nothing in this policy takes 

away from those tools and reliance on, 

and recognition of, collaborative 

conservation partnerships. Rather, the 

Services believe the elements of this 

policy provide greater clarity and 

certainty on how those conservation 

tools are regarded and evaluated when 

considering designations of critical 

habitat. Additionally, the Services’ goal 

is to remove any real or perceived 

disincentive for voluntary conservation 

plans and collaborative partnerships, 

whether permitted under section 10 of 

the Act or developed outside of those 

provisions. 

Comment (38): A commenter stated 

that monitoring and adaptive 

management of conservation plans 

should not be used as standards for 

determining exclusions. The commenter 

noted that critical habitat designations 

do not have this standard, which 

elevates the exclusionary determination 

above that which the Services use in 

their critical habitat designations. 

Our Response: In order to exclude an 

area from critical habitat, the benefits of 

exclusion must outweigh those of 

inclusion, and the exclusion must not 

result in the extinction of the species. 

As the commenter correctly notes, 

adaptive management and monitoring 

are not a prescribed part of critical 

habitat designations and 

implementation. However, monitoring 

the implementation of conservation 

actions is essential to determine 

effectiveness of such actions, and using 

adaptive management is critical to the 

long-term success of conservation plans. 

Therefore, these factors are important 

considerations in evaluating the degree 

to which the existence of the 

conservation plan reduces the benefits 

of inclusion of an area in critical habitat. 

Comment (39): A commenter stated 

that in the list of eight factors the 

Services say they will consider when 

evaluating lands for exclusion based on 

non-permitted conservation plans, the 

Services should clarify what they mean 

by, ‘‘The degree to which there has been 

agency review and required 

determinations.’’ The commenter asked 

which agencies would review the 

conservation plan, agreement, or 

partnership—the Services, other Federal 

agencies, or State or local agencies? 

What determinations are ‘‘required 

determinations?’’ 

Our Response: Should the Services 

choose to enter into the discretionary 

4(b)(2) exclusion analysis, we would 

evaluate any information supplied by 

the requester for exclusion, including 

whether the plan has complied with 

applicable local, State, and Federal 

requirements, and any determinations 

required therein. For example, a countylevel ordinance requiring habitat setasides for development may require 

State environmental review and public 

scoping. This type of required review or 

determination would be taken into 

consideration when evaluating 

particular areas for exclusion. The 

Services are not prescribing any suite of 

required determinations. The burden is 

on the requester to provide relevant 

information pertaining to review of the 

plan by any agency. This is important 

information that will be used in our 

evaluation of the effectiveness of a 

conservation plan in the discretionary 

4(b)(2) exclusion analysis. 

Comment (40): One commenter 

disagreed with the Services’ proposal to 

consider whether a permittee ‘‘is 

expected to continue to [properly 

implement the conservation agreement] 

for the term of the agreement.’’ The 

commenter stated the Services should 

rely on their authority to revoke permits 

and revise critical habitat rather than 

speculating about future 

implementation of conservation 

agreements. Accordingly, the 

commenter requests that the Services 

remove the phrase ‘‘and is expected to 

continue to do so for the term of the 

agreement’’ from the first condition 

related to the exclusion of conservation 

plans related to section 10 permits. 

Our Response: The Services need to 

evaluate whether there is reasonable 

certainty of implementation and 

completion of conservation plans. 

Permittees are expected to fulfill the 

provisions of their permits for the 

agreed-upon time period. However, 

given the voluntary nature of 

agreements, it is possible, even in 

permitted plans, that permittees may 

not implement the plan as conditioned 

or may cancel an agreement at any time. 

Therefore, certainty of the continuance 

of any conservation plan is an important 

consideration. 

Comment (41): One commenter stated 

that the Services should emphasize the 

benefits of critical habitat and expressed 

disappointment that the Services’ draft 

policy attempts to minimize the actual 

benefits that derive from critical habitat 

with an extremely cursory description 

of critical habitat’s benefits at the 

beginning of the preamble to the draft 

policy. 

Our Response: The Services in no way 

intend to understate the important 

functions of critical habitat. We 

recognize that the primary threat faced 

by most endangered and threatened 

species has been, and continues to be, 

loss and fragmentation of suitable 

habitat. Critical habitat designation is 

one conservation tool in the Act that 

attempts to address this situation, by 

identifying habitat features and areas 

essential to the conservation of the 

species. It provides educational benefits 

by bringing these important areas to the 

public’s and landowners’ attention, and 

requires consultation with the Services 

for proposed activities by Federal 

agencies, on Federal lands, or involving 

a Federal nexus, to ensure that such 

activities are not likely to cause the 

destruction or adverse modification of 

the critical habitat. These benefits are 

considered by the Services on a case-bycase basis in the context of the 

discretionary consideration of 

exclusions under Section 4(b)(2). 

Comment (42): A commenter stated 

that the Services should clarify that this 

policy provides broad program 

guidance, not specific prescriptions of 

exclusion analysis and designation. It 

does not concern a specific action 

concerning a specific property. Also, the 

commenter stated the Services should 

point out that the 4(b)(2) policy could be 

used to avoid a Fifth Amendment taking 

if extensive property restrictions would 

occur due to critical habitat designation. 

Our Response: We agree that the 

purpose of this policy is to provide 

guidance and clarity as to how the 

Services consider exclusions under 

section 4(b)(2) of the Act, rather than 

formulaic prescriptions as to how 

exclusion analyses are performed. As 

noted above, each area considered for 

exclusion from a particular critical 


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habitat designation is unique, and the 

factors considered in such evaluation 

are fact-specific. Thus, there is no 

simple, one-size-fits-all approach; 

rather, the Services take a case-by-case 

approach in considering the factors in a 

weighing and balancing analysis, and 

the relative importance (or weight) of 

each of those factors. 

The Services do not consider the 

designation of critical habitat to impose 

property restrictions such that a Fifth 

Amendment taking issue would arise. 

Comment (43): One commenter noted 

that the Services should clarify that 

exclusion of private lands from critical 

habitat designation is not a ‘‘reward.’’ 

The commenter stated the draft policy 

may be perceived as contradictory to 

key messaging being promoted through 

outreach efforts to landowners and that 

the Services’ outreach messaging has 

been that critical habitat designation 

does not affect private landowners, 

unless their activity is authorized, 

funded, or carried out by a Federal 

agency. The commenter’s opinion is that 

the draft policy, however, appears to 

‘‘reward’’ landowners by excluding their 

land from critical habitat if their land is 

covered by a conservation plan. 

Our Response: We agree in part with 

the commenter. It is true that critical 

habitat does not create a regulatory 

impact on private lands where there is 

no Federal nexus, and that even when 

there is a Federal nexus, the potential 

impact of a designation of critical 

habitat sometimes is minimal. 

Nevertheless, the Services are keenly 

aware of the significant concerns that 

some landowners have about critical 

habitat. We also recognize that 

landowners invest time and money for 

proactive conservation plans on their 

lands. The Services do not exclude 

particular areas from a designation of 

critical habitat as a reward to 

landowners for conservation actions 

they undertake. Rather, the existence of 

a conservation plan; effective, 

implemented conservation actions; and 

a demonstrated partnership are relevant 

factors that should be considered in any 

discretionary 4(b)(2) analysis. If the 

Services find the benefits of exclusion 

outweigh inclusion based on the 

specific facts, the particular area 

covered by the conservation plan may 

be excluded, provided the exclusion 

will not result in the extinction of the 

species. 

Comment (44): A commenter asked 

the Services to define ‘‘partnerships’’ 

and how they will be evaluated. 

Our Response: Partnerships come in 

many forms. Some partnerships have a 

long-standing track record of the 

partners working together for the 

conservation of species and their 

habitat, some partnerships are newly 

formed, and others are generally 

anticipated to occur in the future. We 

greatly appreciate and value these 

conservation partnerships, and will 

consider the specifics of what each 

partnership contributes to the 

conservation of the species when 

conducting discretionary 4(b)(2) 

exclusion analyses. We will also 

consider the general benefits that 

excluding areas will have on 

encouraging future partnerships. 

Because the specifics and context of 

partnerships vary so much, we conclude 

that it would not be useful to attempt to 

expressly define ‘‘partnerships,’’ or to 

set out uniform guidance as to how they 

will be evaluated. 

Comment (45): One commenter stated 

that the length of a conservation plan 

and the certainty it will continue to be 

implemented should be added to the 

criteria used to evaluate HCPs, SHAs, 

and CCAAs. None of the conditions 

account for the temporary nature of 

these agreements, nor is this aspect 

discussed elsewhere in the draft policy 

or preamble. A commenter 

recommended adding a fourth condition 

to address the expected longevity of the 

CCAA/SHA/HCP. 

Our Response: We have already 

captured this in the first condition we 

evaluate, which states: ‘‘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.’’ We have 

determined not to be more prescriptive 

than this, because we need to retain 

flexibility in our evaluations. We may 

use the track record of partnership in 

our discretionary 4(b)(2) exclusion 

analysis, which may include the length 

of the permitted plan. For example, 

some plans have long-term 

implementation schedules in which 

additional conservation measures are 

developed or phased in over time, so it 

would not be appropriate to expect all 

measures will be put into place 

immediately. The Services expect that 

plans will be fully implemented 

regardless of their term of agreement or 

operation. When issuing permits, the 

Services considera whether the term of 

any such plan is sufficient to produce 

meaningful conservation benefits to the 

species. Therefore, it is not necessary in 

all cases to evaluate the term of a permit 

as a condition for exclusion from critical 

habitat. However, the Services have 

retained their flexibility to evaluate 

plans on a case-by-case basis, and may 

consider the term of the plan if 

appropriate. 

Comments Regarding Transportation 

Infrastructure 

Comment (46): A commenter 

requested that the Services exclude 

transportation infrastructure from 

critical habitat designations. The 

commenter suggested that a new 

paragraph or policy element be added. 

The paragraph would state the Services 

will always consider in their 

discretionary exclusion analysis that 

dedicated transportation infrastructure 

and rights-of-way (ROWs) be excluded 

from critical habitat, given that 

transportation lands are managed 

primarily for the use and safety of the 

travelling public and usually have very 

little conservation value for listed 

species. 

Our Response: The Services recognize 

the importance of maintaining 

transportation infrastructure and ROWs 

for the safe conveyance of people and 

goods. However, the Services do not 

agree that creating a dedicated policy 

element giving great weight and 

consideration to exclusion of 

transportation infrastructure and ROWs 

is necessary. Some areas seemingly 

included within the overall boundaries 

of critical habitat designations consist of 

manmade structures and impervious 

surfaces that do not contain the features 

essential to the conservation of a 

species. This occurs because of the scale 

and resolution of the maps used to 

depict critical habitat. To remedy this, 

all regulations designating critical 

habitat contain language stating that 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located are not included in critical 

habitat. Therefore, a Federal action 

involving these lands will not trigger 

section 7 consultation with respect to 

the requirement that the Federal agency 

insure that the action is not likely to 

adversely modify critical habitat, unless 

the specific action would affect the 

physical or biological features in the 

adjacent critical habitat. 

Portions of ROWs may not contain 

manmade structures, and may be 

included in areas that otherwise meet 

the definition of ‘‘critical habitat.’’ In 

some cases, the footprint of ROWs 

themselves may not have the features 

essential to the conservation of the 

species at issue. In this case, should the 

Services engage in a discretionary 

4(b)(2) exclusion analysis, the Services 

may determine that that there is little or 

no benefit of inclusion, and that the 


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benefits of exclusion outweigh the 

benefits of inclusion, and, therefore, 

decide to exclude the ROWs from the 

designation. 

Comment (47): The designation of 

critical habitat on an airport may serve 

to attract wildlife to the airport 

environment. The Federal Aviation 

Administration (FAA) requests that an 

element be added to the policy that 

would convey great weight and 

consideration to excluding aircraftmovement areas, runway and taxi areas, 

object-free areas, and runway-protection 

zones from designations of critical 

habitat. Designation of critical habitat 

could also impair the airport owner’s 

ability to expand facilities, and thus 

have economic costs. FAA requests that 

safety be a specific consideration in any 

exclusion analysis. 

Our Response: The Services disagree 

that a dedicated policy element is 

needed in this particular instance. 

When identifying areas that meet the 

definition of ‘‘critical habitat,’’ the Act 

does not authorize the Services to 

consider landownership. It is a process 

that relies on the best scientific data 

available to determine the specific 

occupied areas containing features 

essential to the conservation of a species 

that may require special management 

considerations or protection and 

unoccupied areas that may be essential 

for the conservation of the species. 

Active airport areas that do not meet the 

definition of ‘‘critical habitat’’ (i.e., 

occupied areas that do not contain the 

features essential to the conservation of 

a particular species that may require 

special management considerations or 

protection or unoccupied areas that are 

not essential for the conservation of the 

species) will not be designated critical 

habitat. As mentioned above, manmade 

structures (such as buildings, aqueducts, 

runways, roads, and other paved areas) 

and the land on which they are located 

are generally not included in critical 

habitat. Therefore, a Federal action 

involving these lands will not trigger 

section 7 consultation with respect to 

the requirement that the Federal agency 

insure that the action is not likely to 

destroy or adversely modify critical 

habitat, unless the specific action would 

affect the physical or biological features 

in the adjacent critical habitat. 

In some particular instances, the 

Services may identify areas within 

airport boundaries that meet the 

definition of ‘‘critical habitat’’ as 

applied to a particular species. In these 

instances, the Services generally would 

consider any request for exclusion from 

the designation received from airport 

managers or FAA under the general 

authority of section 4(b)(2) or applicable 

elements of this policy, e.g., the nonpermitted plans and partnerships 

provision of this policy. In addition, the 

Services encourage airport managers to 

consider developing HCPs that would 

address incidental take of listed species 

and conservation of their habitat. 

Comments on NEPA Requirements 

Comment (48): The Services have 

determined that a categorical exclusion 

(CE) from the NEPA requirements 

applies to the draft policy. CEs address 

categories of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. The commenter stated 

that a CE is not appropriate for NEPA 

compliance on issuance of this draft 

policy, given the potential expansion in 

future critical habitat designations and 

the significant effect on environmental 

and economic resources in areas to be 

designated as a result of these 

initiatives. 

The commenter asserted that the 

Services’ proposed actions constitute a 

‘‘major federal action significantly 

affecting the quality of the human 

environment’’ (42 U.S.C. part 4321, et 

seq.). Furthermore, the commenter 

noted, the Services are required to 

prepare a full Environmental Impact 

Statement (EIS), in draft and final, as 

part of this process and prior to any 

final Federal decisionmaking on the 

proposed rules and guidance. An EIS is 

justified by the sweeping geographic 

scope of the proposals and their 

potentially significant effects on 

environmental resources, land-use 

patterns, growth and development, and 

regulated communities. 

Our Response: Following our review 

of the statutory language of section 

4(b)(2) and our requirements for 

compliance under the National 

Environmental Policy Act of 1969 

(NEPA), we find that the categorical 

exclusion found at 43 CFR 46.210(i) and 

NOAA Administrative Order 216–6 

applies to this policy. As reflected in the 

DOI regulatory provision, the 

Department of the Interior has found 

that the following category of actions 

would not individually or cumulatively 

have a significant effect on the human 

environment and is, therefore, 

categorically excluded from the 

requirement for completion of an 

environmental assessment or 

environmental impact statement: 

‘‘Policies, directives, regulations, and 

guidelines: that are of an administrative, 

financial, legal, technical, or procedural 

nature . . . .’’ NOAA Administrative 

Order 216–6 contains a substantively 

identical exclusion for ‘‘policy 

directives, regulations and guidelines of 

an administrative, financial, legal, 

technical or procedural nature.’’ Section 

6.03c.3(i). The NOAA provision also 

excludes ‘‘preparation of regulations, 

Orders, manuals or other guidance that 

implement, but do not substantially 

change these documents, or other 

guidance.’’ Id. 

At the time the DOI categorical 

exclusion was promulgated, there was 

no preamble language that would assist 

in interpreting what kinds of actions fall 

within the categorical exclusion. 

However, in 2008, the preamble for a 

language correction to the categorical 

exclusion provisions gave as an example 

of an action that would fall within the 

exclusion the issuance of guidance to 

applicants for transferring funds 

electronically to the Federal 

Government. 

This final policy is an action that is 

fundamentally administrative or 

procedural in nature. Although the 

policy addresses more than the timing 

of procedural requirements, it is 

nevertheless administrative and 

procedural in nature, because it goes no 

further than to clarify, in expressly nonbinding terms, the existing 4(b)(2) 

exclusion process by describing how the 

Services undertake discretionary 

exclusion analyses as a result of 

statutory language, legislative history, 

case law, or other authority. This final 

policy is meant to complement the 

revisions to 50 CFR 424.19 regarding 

impact analyses of critical habitat 

designations and provide for a more 

predictable and transparent criticalhabitat-exclusion process. This final 

policy is nonbinding and does not limit 

Secretarial discretion because it does 

not mandate particular outcomes in 

future decisions regarding exclusions 

from critical habitat. As elaborated 

elsewhere in this final policy, the 

exclusion of a particular area from a 

particular critical habitat designation is, 

and remains, discretionary. 

Specifically, this final policy explains 

how the Services consider partnerships 

and conservation plans, conservation 

plans permitted under section 10 of the 

Act, Tribal lands, national-security and 

homeland-security impacts and military 

lands, Federal lands, and economic 

impacts in the exclusion process. The 

policy does not constrain the Services’ 

discretion in making decisions with 

respect to exclusions from critical 

habitat. The considerations in this 

policy are consistent with the Act, its 

legislative history, and relevant circuit 

court opinions. Therefore, the policy 

statements are of an administrative (e.g., 

describing the current practices of the 

Service that have come about as a result 

of legislative history, case law, or other 


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authority), technical (e.g., edits for plain 

language), and/or procedural (e.g., 

clarifying an existing process for a 

Service or NMFS activity) nature. 

FWS reviewed the regulations at 43 

CFR 46.215: Categorical Exclusions: 

Extraordinary Circumstances, and we 

have determined that none of the 

circumstances apply to this situation. 

Although the final policy will provide 

for a credible, predictable, and 

transparent critical-habitat-exclusion 

process, the effects of these changes 

would not ‘‘have significant impacts on 

species listed, or proposed to be listed, 

on the List of Endangered or Threatened 

Species or have significant impacts on 

designated Critical Habitat for these 

species,’’ as nothing in the policy is 

intended to determine or change the 

outcome of any critical habitat 

determination. Moreover, the policy 

would not require that any previous 

critical habitat designations be 

reevaluated on this basis. Furthermore, 

the 4(b)(2) policy does not ‘‘[e]stablish 

a precedent for future action or 

represent a decision in principle about 

future actions with potentially 

significant environmental effects’’ (43 

CFR 46.215(e)). None of the 

extraordinary circumstances in 43 CFR 

46.215(a) through (l) apply to the policy 

on implementing section 4(b)(2) of the 

Act. 

NMFS also reviewed its exceptions 

and has found that this policy does not 

trigger any of the exceptions that would 

preclude reliance on the categorical 

exclusion provisions. It does not involve 

a geographic area with unique 

characteristics, is not the subject of 

public controversy based on potential 

environmental consequences, will not 

result in uncertain environmental 

impacts or unique or unknown risks, 

does not establish a precedent or 

decision in principle about future 

proposals, will not have significant 

cumulative impacts, and will not have 

any adverse effects upon endangered or 

threatened species or their habitats. 

NOAA Administrative Order 216–6, 

§ 5.05c. 

Comment (49): A commenter stated 

that NEPA review should not be a 

standard when evaluating conservation 

plans and that the Services should not 

evaluate whether a conservation plan, 

agreement, or partnership was subject to 

NEPA review when determining 

whether to exclude areas from critical 

habitat designations. See 79 FR 27057 

(May 12, 2014) (section 2.d. of the draft 

policy). Consideration of this factor 

discounts the many worthwhile 

conservation plans developed by private 

entities and State and local 

governments. The commenter stated 

that because NEPA only requires 

analysis of Federal actions (see 42 

U.S.C. 4332(2)(C)), conservation plans 

that are not approved by a Federal 

agency—such as those developed by 

citizens and State and local 

governments—would not undergo 

NEPA review. States, which are 

principal managers of wildlife within 

their borders, frequently develop 

conservation plans to benefit listed and 

non-listed species. Also, landowners 

can establish conservation banks or 

conservation easements without NEPA 

review or public input. Thus, the 

commenter stated that the application of 

this factor to plans and agreements for 

which they are often inapplicable would 

seem to automatically weigh against 

exclusion in most instances. Instead, the 

commenter suggests that the Services 

should focus on the effectiveness of the 

plan and its conservation value, 

regardless of the procedural processes 

used to establish the plan. 

Our Response: The list of factors the 

Services will consider in connection 

with exclusion analysis of nonpermitted plans seems to have been 

misunderstood as absolute requirements 

for excluding areas covered by such 

plans. For some plans that the Services 

may evaluate (those that are Federal and 

may have a significant impact on the 

environment), it would be appropriate 

to consider whether NEPA reviews have 

been completed; for other plans, it may 

not be. The Services are not suggesting 

that every plan needs to have undergone 

NEPA review. Not all of the items listed 

under paragraph 2 (described above 

under the heading, Private or Other 

Non-Federal Conservation Plans and 

Partnerships, in General) are needed to 

ensure the Services consider a plan. To 

this end, the Services have modified the 

language preceding the list of factors for 

evaluating non-permitted conservation 

plans, to clarify that some of the factors 

may not be relevant to all plans. 

Specific Language Suggested by 

Commenters 

Comment (50): Several commenters 

suggested specific line edits or word 

usage. 

Our Response: We have addressed 

these comments as appropriate in this 

document. 

Comment (51): A commenter 

suggested changing the phrase ‘‘and 

meets the conservation needs of the 

species’’ to ‘‘and maintains the physical 

or biological features essential for the 

conservation of the species’’ in draft 

policy element 3(c), which relates to 

permitted plans under section 10 of the 

Act. This change is suggested to 

maintain consistency in the use of terms 

related to critical habitat designations 

and exclusions. 

Our Response: The Services have 

elected not to make the suggested 

change. The language in question refers 

to permitted HCPs, SHAs, and CCAAs, 

and more specifically their underlying 

conservation plans. Plans developed to 

support these conservation vehicles are 

not necessarily designed using the 

terminology applicable to critical 

habitat designation. Therefore, we 

conclude that it is more appropriate to 

retain the more general language used in 

our proposal. 

Comment (52): One commenter stated 

it will be very difficult for the Services 

to determine if excluding one piece of 

habitat ‘‘will result in the extinction of 

a species,’’ as stated in the draft policy 

element 8. Therefore, the commenter 

recommends the language be changed to 

express a likelihood the action will 

result in the extinction of the species 

and stated this determination should be 

made according to the best available 

science. The commenter suggests the 

following as replacement language: ‘‘We 

must not exclude an area if the best 

available science indicates that failure 

to designate it will likely result in the 

extinction of the species.’’ 

Our Response: Part 8 of the policy is 

a restatement of the statutory provision 

of the Act that states the Secretary shall 

not exclude an area if the exclusion will 

result in the extinction of the species 

concerned. To the extent that the 

statutory language is ambiguous, we 

decline to interpret it at this time. 

Comment (53): One commenter 

remarked there remains a fair amount of 

vague language in the factors that are 

considered during a discretionary 

4(b)(2) exclusion analysis. Specifically, 

the commenter stated it is unclear if 

factors that begin with ‘‘Whether’’ will 

rank higher if the answer is affirmative. 

Also, factors that begin with ‘‘The 

degree to which,’’ ‘‘The extent or,’’ and 

‘‘The demonstrated implementation’’ 

must be clarified and quantified before 

they can be appropriately and fairly 

assigned weight in a designation of 

critical habitat. 

Our Response: The examples of 

language noted above from the draft 

policy were carefully chosen. As this is 

a policy and not a regulation, the 

Services chose language such as ‘‘the 

degree to which’’ to accommodate the 

gradations and variations in certain fact 

patterns relating to conservation 

partnerships and plans. Not all plans 

and partnerships are developed in the 

same manner, and no one set of 

evaluation criteria would apply. Rather, 

the Services’ intent in drafting the 

language was to provide latitude in 


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evaluating different types of plans and 

partnerships. Further, the commenter 

does not provide any examples of how 

to quantify measures, nor does the 

commenter provide alternate language 

or suggested revisions to this section of 

the policy. 

Comment (54): One commenter 

suggested adding an additional factor 

under non-permitted plans and 

partnerships, ‘‘Plans must be reasonably 

expected to achieve verifiable, 

beneficial results to qualify for 

exclusion from critical habitat 

designation.’’ 

Our Response: We appreciate the 

suggestions, but we believe these factors 

are already captured in the factors in the 

policy under paragraphs 2.f. (‘‘The 

degree to which the plan or agreement 

provides for the conservation of the 

essential physical or biological features 

for the species.’’) and 2.h. (‘‘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 existence of a monitoring program 

and adaptive management (paragraph 

2.h.) speaks to verifiable results, and the 

statements regarding providing for the 

conservation of the essential features 

and effective conservation measures 

(paragraph 2.f.) relate to beneficial 

results. Therefore, we did not adopt the 

suggested additions. 

Comment (55): One commenter 

suggested adding a fourth condition 

under the permitted plans section of the 

policy: ‘‘If plans cannot be implemented 

or do not achieve the intended results, 

a re-evaluation of critical habitat 

designation may be required.’’ 

Our Response: As discussed in this 

final policy in the framework section, 

we base the exclusion not only on the 

plan, but on the conservation 

partnership. Therefore, our first step 

would be to work with that partner to 

implement the plan, bring the plan into 

compliance, or adjust the conservation 

management or objectives of the plan to 

be effective for the conservation of the 

covered species. We of course retain the 

authority under the Act to revise the 

designation, if necessary, through the 

rulemaking process to include these 

areas in critical habitat, if appropriate. 

For the above reasons, while we 

considered the suggestion to add a 

policy element, we have determined 

that it is not necessary. 

Comment (56): One commenter 

suggested adding the following language 

to the draft policy element paragraph 5: 

‘‘If the agency requesting the exclusion 

does not provide us with a specific 

justification, we will contact the agency 

to require that it provide a specific 

justification. When the agency provides 

a specific justification, we will defer to 

the expert judgment of the DoD, DHS, or 

another Federal agency.’’ 

Our Response: The suggested text is 

paraphrased from the policy preamble. 

Therefore, the Services do not agree that 

this language adds substantively to the 

clarity of the policy, and we did not 

adopt this suggestion. 

Comment (57): A commenter 

suggested we add the following 

language to the policy regarding private 

lands: ‘‘The Service recognizes that 

many listed species are found primarily 

or partially on private lands. For some 

endemic species, their entire range may 

be wholly on private lands, making 

partnerships with those landowners far 

more valuable than any expected gain 

that might be achieved through the 

incremental gains expected through a 

critical habitat designation and 

subsequent section 7 consultations. We 

acknowledge the potential incremental 

gain in conservation value from 

designating critical habitat on private 

land can be undermined if the 

landowner is not a partner in that 

designation or is opposed to that 

designation. Private land tracts that are 

proposed as critical habitat are likely to 

maximize their recovery value for listed 

species if the landowner is amenable to 

conservation and recovery activities on 

their lands. Therefore, landowners 

whose property has been proposed as 

critical habitat and wish to be excluded 

from that designation will be given 

serious consideration for exclusion if 

they provide information concerning 

how the lands will be managed for the 

conservation of the species.’’ 

Our Response: The Services generally 

will consider exclusion of private lands 

from a designation of critical habitat if 

specifically requested. Private lands are 

needed for the conservation of 

endangered and threatened species. If a 

private landowner requests exclusion, 

and provides a reasoned rationale for 

such exclusion, including measures 

undertaken to conserve species and 

habitat on the land at issue (such that 

the benefit of inclusion is reduced), the 

Services would consider exclusion of 

those lands. However, the Services 

decline to include a policy element in 

this policy covering this particular 

suggestion. 

Comment (58): A commenter 

suggested that we give great weight and 

consideration to exclusion of lands 

whose landowners allow access to their 

lands for purposes of surveys, 

monitoring, and other conservation and 

research activities. 

Our Response: The Services would 

consider and give appropriate weight, 

on a case-by-case basis, to the benefits 

of the information gathered, should the 

Secretaries choose to enter into the 

discretionary 4(b)(2) exclusion analysis. 

If not yet established, we hope that 

arrangements of this sort with 

landowners could lead to conservation 

partnerships in the future. Development 

of those partnerships could result in 

furthering the conservation of the 

species. 

Comment (59): A commenter 

suggested that the Services should 

include specific text in the policy 

regarding the importance of private 

landowner partnership and cooperation 

in species recovery efforts. Furthermore, 

the commenter suggests the Services 

give great weight to excluding private 

lands whose owners have expressed 

interest in participation in voluntary 

recovery efforts. 

Our Response: The Services agree that 

recovery of listed species relies on the 

cooperation of private landowners and 

managers. The commenter brings to 

light an inherent tension with listing 

and recovery under the Act. One might 

think that the process of listing, 

designating critical habitat, developing a 

recovery plan, carrying out recovery 

plan objectives, and ultimately delisting 

a species should be a linear process. It 

is not. Adding species to the Federal 

Lists of Endangered and Threatened 

Wildlife and Plants and identifying 

areas that meet the definition of ‘‘critical 

habitat’’ are science-based processes. 

Areas meeting the definition of ‘‘critical 

habitat’’ for a given species must be 

identified as eligible for designation as 

critical habitat, regardless of 

landownership or potential future 

conflict with recovery opportunities, 

such as mentioned by the commenter. 

The Secretary may, however, exclude 

areas based on non-biological factors. 

The subject of this policy is to make 

transparent how the Services plan to 

address certain fact patterns under 

which the Secretaries will consider 

excluding particular areas from a 

designation. The presumption of 

cooperation for purposes of recovery of 

a species is not a particular fact pattern 

the Services have chosen to include, but 

is inherently captured under the 

partnership element of this policy. As 

stated in the permitted plans section of 

this policy, the Services would not 

weigh heavily a prospective partnership 

in which a landowner merely may 

choose to cooperate with the Services. If 

habitat-based threats are the main driver 

for a species’ listing, the designation of 

critical habitat could be an important 

tool for species conservation. 


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Comment (60): We received numerous 

specific comments in several categories 

that were not directly relevant to this 

final policy on exclusions from critical 

habitat, and, therefore, they are not 

addressed in this section. While not 

directly relevant to this policy, we may 

address some of these issues in future 

rulemaking or policy development by 

the Services. These include: 

• Issues regarding earlier 

coordination with States in the 

designation of critical habitat; 

• Development and designation 

processes for critical habitat; 

• Development of conservation plans; 

• Relocation of existing critical 

habitat designations from airport lands; 

and 

• Nonessential experimental 

populations. 

Required Determinations 

We intend to look to this policy as 

general non-binding guidance when we 

consider exclusions from critical habitat 

designations. The policy does not limit 

the Secretaries’ discretion in particular 

designations. In each designation, we 

are required to comply with various 

Executive Orders and statutes for those 

individual rulemakings. Below we 

discuss compliance with several 

Executive Orders and statutes as they 

pertain to this final policy. 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 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 final policy is a significant 

action because it may create a serious 

inconsistency with other agency actions. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that our regulatory system 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 policy in a manner 

consistent with these requirements. 

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.): 

(a) We find this final policy will not 

‘‘significantly or uniquely’’ affect small 

governments. We have determined and 

certify pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502, 

that this policy will not impose a cost 

of $100 million or more in any given 

year on local or State governments or 

private entities. Small governments will 

not be affected because the final policy 

will not place additional requirements 

on any city, county, or other local 

municipalities. 

(b) This final policy will not produce 

a Federal mandate on State, local, or 

Tribal governments or the private sector 

of $100 million or greater in any year; 

that is, it is not a ‘‘significant regulatory 

action’’ under the Unfunded Mandates 

Reform Act. This policy will impose no 

obligations on State, local, or Tribal 

governments because this final policy is 

meant to complement the amendments 

to 50 CFR 424.19, and is intended to 

clarify expectations regarding critical 

habitat and provide for a more 

predictable and transparent criticalhabitat-exclusion process. The only 

entities directly affected by this final 

policy are the FWS and NMFS. 

Therefore, a Small Government Agency 

Plan is not required. 

Takings—Executive Order 12630 

In accordance with Executive Order 

12630, this final policy will not have 

significant takings implications. This 

final policy will not pertain to ‘‘taking’’ 

of private property interests, nor will it 

directly affect private property. A 

takings implication assessment is not 

required because this final policy (1) 

will not effectively compel a property 

owner to suffer a physical invasion of 

property and (2) will not deny all 

economically beneficial or productive 

use of the land or aquatic resources. 

This final policy will substantially 

advance a legitimate government 

interest (clarify expectations regarding 

critical habitat and provide for a more 

predictable and transparent criticalhabitat-exclusion process) and will not 

present a barrier to all reasonable and 

expected beneficial use of private 

property. 

Federalism—Executive Order 13132 

In accordance with Executive Order 

13132 (Federalism), this final policy 

does not have Federalism implications 

and a Federalism summary impact 

statement is not required. This final 

policy pertains only to exclusions from 

designations of critical habitat under 

section 4 of the Act, and will not have 

substantial direct effects on the States, 

on the relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), this final 

policy will not unduly burden the 

judicial system and meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. The clarification of 

expectations regarding critical habitat 

and providing a more predictable and 

transparent critical-habitat-exclusion 

process will make it easier for the public 

to understand our critical-habitatdesignation process, and thus should 

not significantly affect or burden the 

judicial system. 

Paperwork Reduction Act of 1995 

This final policy does not contain any 

new collections of information that 

require approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). This final policy will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) 

We have analyzed this policy in 

accordance with the criteria of the 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4332(c)), the Council 

on Environmental Quality’s Regulations 

for Implementing the Procedural 

Provisions of NEPA (40 CFR parts 1500– 

1508), the Department of the Interior’s 

NEPA procedures (516 DM 2 and 8; 43 

CFR part 46), and NOAA’s 

Administrative Order regarding NEPA 

compliance (NAO 216–6 (May 20, 

1999)). 

We have determined that this policy 

is categorically excluded from NEPA 

documentation requirements consistent 

with 40 CFR 1508.4 and 43 CFR 

46.210(i). This categorical exclusion 

applies to policies, directives, 

regulations, and guidelines that are ‘‘of 

an administrative, financial, legal, 

technical, or procedural nature.’’ This 

action does not trigger an extraordinary 

circumstance, as outlined in 43 CFR 


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46.215, applicable to the categorical 

exclusion. Therefore, this policy does 

not constitute a major Federal action 

significantly affecting the quality of the 

human environment. 

We have also determined that this 

action satisfies the standards for 

reliance upon a categorical exclusion 

under NOAA Administrative Order 

(NAO) 216–6. Specifically, the policy 

fits within two categorical exclusion 

provisions in § 6.03c.3(i)—for 

‘‘preparation of regulations, Orders, 

manuals, or other guidance that 

implement, but do not substantially 

change these documents, or other 

guidance’’ and for ‘‘policy directives, 

regulations and guidelines of an 

administrative, financial, legal, 

technical or procedural nature.’’ NAO 

216–6, § 6.03c.3(i). The policy would 

not trigger an exception precluding 

reliance on the categorical exclusions 

because it does not involve a geographic 

area with unique characteristics, is not 

the subject of public controversy based 

on potential environmental 

consequences, will not result in 

uncertain environmental impacts or 

unique or unknown risks, does not 

establish a precedent or decision in 

principle about future proposals, will 

not have significant cumulative impacts, 

and will not have any adverse effects 

upon endangered or threatened species 

or their habitats. Id. § 5.05c. As such, it 

is categorically excluded from the need 

to prepare an Environmental 

Assessment. Issuance of this rule does 

not alter the legal and regulatory status 

quo in such a way as to create any 

environmental effects. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’, 

November 6, 2000), the Department of 

the Interior Manual at 512 DM 2, the 

Department of Commerce (DOC) Tribal 

Consultation and Coordination Policy 

(May 21, 2013), DOC Departmental 

Administrative Order (DAO) 218–8, and 

NOAA Administrative Order (NAO) 

218–8 (April 2012), we have considered 

possible effects of this final policy on 

federally recognized Indian Tribes. 

Following an exchange of information 

with tribal representatives, we have 

determined that this policy, which is 

general in nature, does not have tribal 

implications as defined in Executive 

Order 13175. Our intent with this policy 

is to provide non-binding guidance on 

our approach to considering exclusion 

of areas from critical habitat, including 

tribal lands. This policy does not 

establish a new direction. We will 

continue to collaborate and coordinate 

with Tribes on issues related to 

federally listed species and their 

habitats and work with them as we 

promulgate individual critical habitat 

designations, including consideration of 

potential exclusions on the basis of 

tribal interests. See Joint Secretarial 

Order 3206 (‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’, June 5, 1997). 

Energy Supply, Distribution, or Use 

Executive Order 13211 ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

final policy is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action 

and no Statement of Energy Effects is 

required. 

Policy on Implementation of Section 

4(b)(2) of the Act 

1. The decision to exclude any 

particular area from a designation of 

critical habitat is always discretionary, 

as the Act states that the Secretaries 

‘‘may’’ exclude any area. In no 

circumstances is an exclusion of any 

particular area required by the Act. 

2. When we undertake a discretionary 

4(b)(2) exclusion analysis, we will 

evaluate the effect of non-permitted 

conservation plans or agreements and 

their attendant partnerships on the 

benefits of inclusion and the benefits of 

exclusion of any particular area from 

critical habitat by considering a number 

of factors. The list of factors that we will 

consider for non-permitted conservation 

plans or agreements is shown below. 

This list is not exclusive; all items may 

not apply to every non-permitted 

conservation plan or agreement and are 

not requirements of plans or 

agreements. 

a. The degree to which the record of 

the plan supports a conclusion that a 

critical habitat designation would 

impair the realization of benefits 

expected from the plan, agreement, or 

partnership. 

b. The extent of public participation 

in the development of the conservation 

plan. 

c. The degree to which there has been 

agency review and required 

determinations (e.g., State regulatory 

requirements), as necessary and 

appropriate. 

d. Whether National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) compliance was required. 

e. The demonstrated implementation 

and success of the chosen mechanism. 

f. The degree to which the plan or 

agreement provides for the conservation 

of the essential physical or biological 

features for the species. 

g. Whether there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in the conservation plan or 

agreement will be implemented. 

h. 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. 

3. When we undertake a discretionary 

4(b)(2) exclusion analysis, we will 

always consider areas covered by a 

permitted candidate conservation 

agreement with assurances (CCAA), safe 

harbor agreement (SHA), or habitat 

conservation plan (HCP), and we 

anticipate consistently excluding such 

areas from a designation of critical 

habitat if incidental take caused by the 

activities in those areas is covered by 

the permit under section 10 of the Act 

and the CCAA/SHA/HCP meets all of 

the following conditions: 

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. 

We generally will not rely on CCAAs/ 

SHAs/HCPs that are still under 

development as the basis of exclusion of 

a particular area from a designation of 

critical habitat. 

4. When we undertake a discretionary 

4(b)(2) exclusion analysis, we will 

always consider exclusion of Tribal 

lands, and give great weight to Tribal 

concerns in analyzing the benefits of 

exclusion. However, Tribal concerns are 

not a factor in determining what areas, 

in the first instance, meet the definition 

of ‘‘critical habitat.’’ 


jstallworth on DSK7TPTVN1PROD with RULES
7248 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

5. When we undertake a discretionary 

4(b)(2) exclusion analysis, we will 

always consider exclusion of areas for 

which a Federal agency has requested 

exclusion based on an assertion of 

national-security or homeland-security 

concerns, and will give great weight to 

national-security or homeland-security 

concerns in analyzing the benefits of 

exclusion. National-security and/or 

homeland-security concerns are not a 

factor, however, in the process of 

determining what areas, in the first 

instance, meet the definition of ‘‘critical 

habitat.’’ 

6. Except in the circumstances 

described in 5 above, we will focus our 

exclusions on non-Federal lands. 

Because the section 7(a)(2) consultation 

requirements apply to projects carried 

out on Federal lands where there is 

discretionary Federal involvement or 

control, the benefits of designating 

Federal lands as critical habitat are 

typically greater than the benefits of 

excluding Federal lands or of 

designating non-Federal lands. 

7. When the Services are determining 

whether to undertake a discretionary 

4(b)(2) exclusion analysis as a result of 

the probable incremental economic 

impacts of designating a particular area, 

it is the nature of those impacts, not 

necessarily a particular threshold level, 

that is relevant to the Services’ 

determination. 

8. For any area to be excluded, we 

must find that the benefits of excluding 

that area outweigh the benefits of 

including that area in the designation. 

Although we retain discretion because 

we cannot anticipate all fact patterns 

that may occur, it is the general practice 

of the Services to exclude an area when 

the benefits of exclusion outweigh the 

benefits of inclusion. We must not 

exclude an area if the failure to 

designate it will result in the extinction 

of the species. 

Authors 

The primary authors of this policy are 

the staff members of the Endangered 

Species Program, U.S. Fish and Wildlife 

Service, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803, and the 

National Marine Fisheries Service’s 

Endangered Species Division, 1335 EastWest Highway, Silver Spring, MD 

20910. 

Authority 

The authority for this action is section 

4(h) of the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.). 

Dated: January 29, 2016. 

Michael J. Bean, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks. 

Dated: January 29, 2016. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2016–02677 Filed 2–10–16; 8:45 am] 

BILLING CODE 4333–15–P; 3510–22–P 


jstallworth on DSK7TPTVN1PROD with RULES