December 22, 2025
Public Comments Processing
U.S. Fish and Wildlife Service, MS: PRB/3W
5275 Leesburg Pike
Falls Church, VA 22041-3803 Via Regulations.gov
Re: Docket Numbers: Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species; Regulations for Interagency Cooperation, and Designating Critical Habitat; Docket Numbers:, FWS–HQ–ES–2025–0039; NMFS-251105-0168; FWS–HQ–ES–2025–0044; NMFS-251105-0167; FWS–HQ–ES–2025–0029; and FWS–HQ–ES–2025–0048
Dear Sir or Madam:
The American Fisheries Society (AFS) respectfully submits the following comments in response to the proposed rule, Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species; Regulations for Interagency Cooperation, and Designating Critical Habitat; Docket Numbers: FWS–HQ–ES–2025–0039; NMFS-251105-0168;FWS–HQ–ES–2025–0044; NMFS-251105-0167; FWS–HQ–ES–2025–0029; and FWS–HQ–ES–2025–0048 published in the Federal Register on November 21, 2025.
AFS is the world’s oldest and largest professional society of fishery and aquatic scientists and managers. AFS seeks to improve the conservation and sustainability of fishery resources and aquatic ecosystems by advancing fisheries and aquatic science, promoting the development of fisheries professionals, and advocating for the use of best available science in policy-making efforts.
We appreciate the opportunity to comment on the above referenced Endangered Species Act (ESA) rulemakings. We write today to share our perspective on the value of the Endangered Species Act and its importance to our nation’s fish and fisheries. For more than 50 years, the ESA has served as a science-based tool to prevent species from extinction. As one of our nation’s bedrock environmental laws, it is the last backstop for a species in decline. When a species is designated as threatened or endangered – or “listed” under the ESA – it is in dire need of help. It is far more costly and difficult to recover a species once it is in need of the “emergency room” protections of the ESA.
AFS is concerned that the proposed revisions may introduce considerations that are inappropriate for science-based decision making related to species conservation and may ultimately undermine the ESA as a science-based statute aimed at recovery populations of species at-risk of extinction.
Congress recognized in explaining the purpose of passing the ESA, that listed species depend upon ecosystems. Indeed, many ESA petitions and listings have identified the loss of usable habitat or access to habitat in ecosystems as the reasons for the decline in species. Increases in water temperature, lack of water in streams and rivers, poor water quality, invasive species, and habitat degradation have imperiled forty percent of all freshwater species. A broader definition of habitat allows for more tools in the conservation ‘tool box’ and flexibility is particularly important in the face of climate change.
Critical Habitat Designations
The definition of critical habitat is of particular importance for fisheries management because successful conservation efforts for species protection and recovery require holistic watershed approaches (e.g., Native Fish Conservation Areas like the Little Tennessee River and Willamette River for Oregon Chub). Several fish species have been recovered and delisted over the last ten years, including the Oregon Chub, Modoc Sucker, Okaloosa Darter, and other species, through this approach.
Based on the knowledge of imperiled species experts within our membership, we believe that any designation of critical habitat within the ESA regulations needs to be broad and flexible enough to account for a wide variety of situations to ensure that the ecosystems upon which endangered and threatened species depend are conserved. Such situations may include a species expansion into habitats not currently utilized, through processes such as, but not limited to, colonization from source populations, response to climate change, habitat restoration, and species reintroductions.
A dual approach of both protecting existing quality habitat and increasing occupiable habitat is necessary to sustain species into the future, prevent listings, and achieve delistings. AFS recommends that the designation of critical habitat take into account areas that may not be currently occupied by the species but are important for flow of energy and resources, or could replace areas that are no longer suitable due to other pressures such as climatic variation, presence of invasive species, or resource development. Any definition of “habitat” applicable to designating critical habitat that excludes currently unoccupied habitat would be counterproductive to delisting and would limit funding and opportunities to expand populations into those unoccupied areas and work towards recovery.
The proposed revisions to 50 CFR 424.12(b)(2) are problematic because they require that unoccupied areas suitable for conservation of the species may only be considered if the occupied habitat is inadequate to ensure conservation of the species. This would mean that pursuing recolonization of unoccupied habitat could not be part of a recovery plan unless the current available historic habitat was found to be limiting to the species. Many species are listed because the necessary attributes to support the species do not exist in habitat that was suitable in the past and part of their historic distribution, or may have reduced carrying capacity due to changes in flow regime or seasonal habitat conditions. The examples below highlight the importance of broad coverage and flexibility for critical habitat designation.
For example, the Rio Grande Silvery Minnow is an endangered species whose historic range includes the Rio Grande and Pecos rivers in New Mexico and Texas, down to the Gulf of Mexico. It currently occupies about 7% of its historic range, and today, is now only found in the middle Rio Grande from Cochiti Dam, downstream to the in-stream flow of Elephant Butte Reservoir in New Mexico. This reach is the only part of its range designated as critical habitat. This species is now considered extirpated from the entire Pecos River and the Big Bend National Park reach of the Rio Grande in Texas. Delisting conditions in the recovery plan require reproducing populations in these areas. Yet, the habitat condition has continued to decline. The Rio Grande Silvery Minnow serves as an example where failure to designate critical habitat throughout its current but unoccupied historical range has resulted in prolonged and costly recovery efforts. Because the reaches are currently unoccupied, they would not be designated as critical habitat for this species under the proposed rule. Failure to protect these unoccupied but important areas as critical habitat makes recovery significantly more costly and increases the likelihood of species being listed in perpetuity because of prolonged recovery efforts.
The rule also ignores the science of water and habitat connectivity for imperiled species recovery. For example, the Alabama Ozark Cavefish, Pygmy Sculpin, and pupfish, all very isolated species, require inputs from unoccupied upstream springs into their narrow, occupied habitat for survival. In this case, these upstream water sources are unoccupied, but essential for recovery. Under the proposed rule, the upstream habitat would not be determined to be critical habitat. Development in these areas could lead to the destruction of upstream sources of water and will reduce the probability of delisting these species.
Some imperiled species require healthy headwater streams to feed into downstream habitats. While the headwaters might be unoccupied they are no less important for recovery. For example, recovery plans for the Cui-ui and Lahontan Cutthroat Trout in Pyramid Lake, Nevada require downstream flows from the Truckee River, an area both species have historically occupied and may need to occupy in the future. While neither species presently occupies the Truckee, the river should be considered critical habitat. Restoration efforts on the Truckee have resulted in an improved condition of these species.
The designation of critical habitat in currently unoccupied reaches is also critical for endangered migratory fish such as suckers, sturgeon, chubs. These fish may need to expand into restored upstream areas, find thermal refugia there, or move into new river reaches to recover to the point of meeting delisting requirements.
Foreseeable Future
Threatened species are defined under the ESA as species likely to become endangered within the “foreseeable future.” The proposed rule changes narrow the interpretation of “foreseeable future” to limit it to only the period where both future threats and the species’ responses to those threats can be reasonably determined as “likely,” based on the best available scientific data.
Narrowing the scope of threats considered when listing a species as “threatened” may prevent actions for species before their status declines to warrant “endangered” status. Listing a species as “threatened” prioritizes conservation when a species still has enough habitat and individuals to recover without more intensive actions such as hatchery breeding programs or relocation efforts.
The change in language also increases the burden of proof for demonstrating long-term, less immediate threats, such as those related to climate change, by requiring a higher degree of certainty (“likely” vs. “reasonably reliable predictions”) that the effects will occur.
The proposed changes would allow the agencies to avoid designating critical habitat if the primary threat to a species is climate change (e.g., rising water temperatures or shifting ocean currents). The immense challenges of climate change for fish and aquatic resources will undoubtedly lead to additional species declines. For cold-water species like trout and salmon, this could mean losing protections for future
cold-water refuges. Current models show that important coldwater habitats will continue to shrink to higher elevation tributaries or become discontinuous due to thermal barriers in lowland streams and rivers, impacting migratory trout and salmon (Gallagher 2022, NOAA 2022). These risks and expected trends are well-established on large scales, but how each species may be affected is more difficult to predict. Coldwater species like brook trout and stocks of Pacific salmon are highly vulnerable to these long-term shifts, but if their projected decline is deemed less than “likely” over a specific timeframe, they may not qualify for threatened status.
Economic Considerations
The determination of critical habitat should be based on the scientific analysis of the species status and needs for recovery. The proposed rule assigns weight to economic impacts in ways that introduce non-scientific criteria for habitat designations. In essence the changes would attempt to place an economic value on species conservation in order to compare it to the possible costs of designating an area as critical habitat.
Species conservation yields economic benefits to communities over the long term, and the importance of using science to strategically identify and conserve suitable habitat for species to ensure that they recover and can be delisted has been demonstrated.
Recently delisted species like the Apache Trout, Roanoke Logperch, and Oregon Chub all depended on habitat conservation and resource management to achieve recovery. Apache Trout are an important native sportfish in Arizona, and its delisting will contribute to the $1.3 billion generated by sportfishing in the state (ASA 2021). Furthermore, the revisions state that the request for an analysis for exclusion may be presented by a project proponent and the only criteria for their evidence of possible economic harm is that it be credible.
Limitations on Impact Assessment
Other changes to 50 CFR 402.17 that would restrict the analysis of impacts to a specific timeframe or geographic scale near the immediate action area ignore the needs of migratory species and their dependence on areas that often cross political (agency, state, national) boundaries as well as seasonal requirements that may occur outside of the immediate project timeline or be affected later in time by actions taken. Many migratory fish species spawn in headwater streams miles from where the adults rear and grow to maturity. Several anadromous species travel hundreds of miles, many crossing multiple states to reach spawning areas, and their offspring travel the same routes in reverse to reach their adult habitats. In 2017, amongst freshwater fish, state and federal expenditures were highest for ESA listed Pallid Sturgeon (>35 million USD) which can migrate ~200 miles to spawn. Ignoring cumulative impacts along these migratory routes is likely to further increase costs (Shirey and Colvin 2022). From 2012-2017, costs for ESA listed fish increased with a fishes’ geographic range and litigation. Proposed changes to artificially narrow action plans for widespread species is likely to reduce effectiveness of recovery efforts ultimately increasing expenditures over time and for litigation.
Blanket 4(d) Rule
The administration proposes to remove automatic protections against “take” (harm, harassment, or killing) for species listed as “threatened.” Instead, protections for take of threatened species would be determined on a species-by-species basis, which could result in weaker safeguards for many aquatic species. The blanket 4(d) rule was originally put in place to provide protections to prevent threatened species from continuing to decline while species-specific take provisions were developed. The goal was to prevent species from sliding into an endangered status during this timeframe. Development of species-specific take provisions can require significant time.
Given the recent reductions in staffing at NOAA/NMFS and USFWS, estimated at up to 24% and 18%, respectively; it is even less likely that species-specific 4(d) rules will be completed in a timely manner (Doyle 2025, National Fisherman 2025). Therefore, the result of this change in language will be to leave species designated as threatened without any provisions to protect against take as defined under the Act. Further, this change is likely to lead to more frequent consultations if species’ status declines require changes in listing while a project is underway.
Functionally, this will mean that threatened species may receive little, if any, protections against take until their numbers fall to levels where the species would warrant listing as endangered. This goes against the purpose of the Act in general and Section 4(d) specifically, and would lead to more restrictive regulation over the long-term as species move from threatened to endangered while increasing the potential for loss of species diversity.
In closing, we urge you to retain the pivotal role of using best available science in all ESA decisions, and in recognizing the economic value of our aquatic species and their habitats. The consequence of failing to do so include increased costs for recovery and extinction for many more species.
Thank you for your consideration.
Jeff Kopaska
Executive Director
Cited References:
American Sportfishing Association. 2021. Sportfishing in America: A reliable economic force. Available online: https://asafishing.org/wp-content/uploads/2021/03/Sportfishing-in-America-economics-report.pdf Accessed December 2025
Doyle, M. 2025. Fish and Wildlife Service staff down by at least 18%. Politico. Available online at: https://subscriber.politicopro.com/article/eenews/2025/12/17/fish-and-wildlife-service-staff-down-by-at-least-18-00692709
Gallagher, B.K., Geargeoura, S, Fraser D.J. 2022. Effects of climate on salmonid productivity: A global meta-analysis across freshwater ecosystems. Glob Chang Biol. 28(24):7250-7269. doi: 10.1111/gcb.16446. Epub 2022 Oct 11. PMID: 36151941; PMCID: PMC9827867. https://pmc.ncbi.nlm.nih.gov/articles/PMC9827867/
National Fisherman. 2025. NMFS reports a 24 percent cut in Alaska staffing. June 9, 2025. Available online at: https://www.nationalfisherman.com/nmfs-reports-24-percent-cut-in-alaska-staffing
NOAA Fisheries. 2022. Literature Review of Climate Change Impacts on Pacific Salmon and Steelhead. Northwest Fisheries Science Center. Available online: https://www.fisheries.noaa.gov/west-coast/climate/literature-review-climate-change-impacts-pacific-salmon-and-steelhead Accessed December 2025
Shirey, P.D. and Colvin S.A.R. 2022. Endangered Species Act Expenditures for Fish Taxa Managed by The U.S. Fish and Wildlife Service Are Predicted by Lawsuits, Captive Propagation, and Region. Fisheries 47(7):299–303. Accessed Dec 19 https://doi.org/10.1002/fsh.10742
