Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat
Key claim: The U.S. Fish and Wildlife Service amended its Endangered Species Act regulations to clarify when and how it weighs the benefits of excluding an area from critical habitat against the benefits of designation under section 4(b)(2).
Abstract
(Rule · Interior Department, Fish and Wildlife Service) We, the U.S. Fish and Wildlife Service (FWS or the Service), amend portions of our regulations for section 4 of the Endangered Species Act of 1973, as amended (Act or ESA). Specifically, we revise regulations related to section 4(b)(2) of the Act. Section 4(b)(2) requires consideration of the economic impact, the impact on national security, and any other relevant impact of designating any particular area as critical habitat and authorizes the exclusion of areas from critical habitat if the benefits of excluding the area outweigh the benefits of designating it as critical habitat. These revisions articulate when and how we determine whether the benefits of excluding an area outweigh the benefits of designating the area as critical habitat (exclusion analysis). This rule reflects the Service’s experience and existing case law. The intended effect of this rule is to provide greater transparency and certainty for the public and stakeholders regarding the 4(b)(2) exclusion process.
Why this matters
Critical habitat designations affect federal permitting timelines, consultation burdens, and land-use decisions on both public and private lands, so the framework for excluding areas under section 4(b)(2) has direct cost and environmental implications. By codifying how FWS balances conservation benefits against economic, national security, and other impacts, the rule aims to make exclusion outcomes more predictable for landowners, industry, and states, though critics may view increased use of exclusions as weakening habitat protections.