[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Notices]
[Pages 32183-32188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15249]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Announcement of Draft Policy for Candidate Conservation
Agreements
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Announcement of draft policy; request for public comments.
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SUMMARY: The Fish and Wildlife Service and the National Marine
Fisheries Service (Services) announce a joint Draft Policy for
Candidate Conservation Agreements (Agreements) under the Endangered
Species Act of 1973, as amended (Act). This policy would provide
incentives for private and other non-Federal property owners, and State
and local land managing agencies, to restore, enhance, or maintain
habitats for proposed, candidate and certain other unlisted species.
Candidate Conservation Agreements would be developed by participating
property owners or State or local land managing agencies to remove the
need to list the covered species as threatened or endangered under the
Act. The Services will coordinate closely with the appropriate State
agencies and any affected Native American Tribal governments before
entering into Candidate Conservation Agreements with property owners to
conserve covered species.
Under this policy, either Service, or the Services jointly, would
provide participating property owners and State and local land managing
agencies with technical assistance in the development of Candidate
Conservation Agreements and would provide assurances that, if covered
species are eventually listed, the property owners or agencies would
not be required to do more than those actions agreed to in the
Candidate Conservation Agreement. If a species is listed, incidental
take authorization would be provided to allow the property owner or
agency to implement management activities that may result in take of
individuals or modification of habitat consistent with those levels
agreed upon and specified in the Agreement.
Published concurrently in this Federal Register are the Fish and
Wildlife Service's (FWS) proposed regulations necessary to implement
this policy. The Services seek public comment on this proposed draft
policy.
[[Page 32184]]
If adopted in final form, this policy will be incorporated into the
FWS's Candidate Conservation Handbook.
DATES: Comments on the draft policies must be received by August 11,
1997.
ADDRESSES: Send any comments or materials concerning the Draft Policy
for Candidate Conservation Agreement to the Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, 452 ARLSQ,
Washington, D.C. 20240 (Telephone 703/358-2171, Facsimile 703/358-
1735). You may examine comments and materials received during normal
business hours in room 452, Arlington Square Building, 4401 North
Fairfax Drive, Arlington, Virginia. You must make an appointment to
examine these materials.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Fish and
Wildlife Service, Division of Endangered Species (Telephone (703) 358-
2171) or Nancy Chu, National Marine Fisheries Service, Chief,
Endangered Species Division (Telephone (301) 713-1401).
SUPPLEMENTARY INFORMATION:
Background
Much of the nation's current and potential fish and wildlife
habitat is on non-Federal property, owned or regulated by private
citizens, States, municipalities, Native American Tribal governments,
and other non-Federal entities, or managed by State and local agencies.
Conservation efforts on non-Federal lands and waters are critical to
the long-term conservation of many declining species. More importantly,
a collaborative stewardship approach is critical for the success of
such an initiative.
Emphasis on early conservation efforts for proposed and candidate
species, and species likely to become either proposed or candidate
species in the near future, allows the Services to seek opportunities
for both Federal and non-Federal entities to stabilize and recover
these species and their ecosystems through Candidate Conservation
Agreements before listing becomes necessary. By addressing the
conservation of proposed and candidate species, and species likely to
become candidates in the near future, the Services and other Federal
and non-Federal entities retain management flexibility, while ensuring
measurable conservation actions are implemented for these species
before their long-term existence is compromised. Implementation of
effective conservation actions allows the Services to focus their
limited listing resources on those species facing the greatest threats
and likely to be in the greatest need of the full range of the Act's
protective measures. The Services recognize the critical importance of
seeking opportunities to implement conservation actions for these
species in full cooperation with other Federal agencies, State and
Tribal governments, local governments, conservation organizations,
private landowners, and other stakeholders before listing becomes
necessary.
In the past, conservation actions instituted for a candidate
species may have reduced or entirely removed the threats to the
species' survival and, in a few instances, completely removed the need
to list the species. Most of these actions have been accomplished
through conservation agreements between the Services and other Federal
agencies. However, given the fact that many proposed and candidate
species occur on non-Federal lands, it is of critical importance to
establish voluntary programs that encourage non-Federal landowners to
implement proactive conservation measures for these declining species.
By deferring implementation of conservation activities for these
species until they are listed, the ecological integrity of their
habitats is compromised, thus in some cases severely limiting recovery
options available. As a result, costs to achieve species recovery are
often high. Greater efforts in addressing the conservation needs of
candidate species before their status becomes critical provide an
ecologically sound and cost-effective means to conserve species.
Many property owners are willing to voluntarily manage their lands
and waters to benefit fish, wildlife, and plants, especially those
species that are declining. Beneficial management could include actions
to maintain habitat or improve habitat (e.g., restoring fire by
prescribed burning, restoring properly functioning hydrological
conditions). Property owners are particularly concerned about possible
future uncertainty relative to land-use or resource-use restrictions
that may result if species colonize their lands or waters or increase
in numbers or distribution because of the property owners' conservation
efforts and subsequently become listed as a threatened or endangered
species. Concern centers primarily on the applicability of the section
9 ``take'' prohibitions if species occupy their lands or waters and on
future land-use or resource-use restrictions that may result from their
conservation-oriented management actions if those species are listed.
The potential for future restrictions has led property owners to avoid
or limit land and water management practices that could enhance or
maintain habitat and benefit or attract fish and wildlife and plants
that may be listed in the future.
In 1994, the Service prepared Draft Candidate Species Guidance
(Guidance), which underwent public review and comment (see 59 FR 65780,
December 21, 1994). However, it did not address the development of
Candidate Conservation Agreements with assurances for non-Federal
property owners. This aspect of Candidate Conservation Agreements is
addressed in the policy described here.
Through the implementation of this policy, the Services intend to
facilitate a collaborative approach for the conservation of proposed
and candidate species, or species likely to become candidate or
proposed species in the near future. Such an approach places emphasis
on the involvement and cooperation among critical stakeholders in the
conservation of these species, including, but not limited to, private
property owners, State and local agencies, Native American Tribal
governments, and non-governmental organizations. Collaborative
stewardship with State fish and wildlife agencies is particularly
important given their statutory role under the Act and their
traditional conservation responsibilities and authorities for resident
species. In exchange for proactive conservation management activities
benefitting candidate and proposed species, the Services would provide
regulatory certainty and assurances to the participating property owner
in case the covered species is subsequently listed. Once finalized,
this policy will be incorporated into the final handbook on candidate
species conservation; the final handbook will be based on the 1994
Draft Candidate Species Guidance with revisions based on the comments
received upon the 1994 draft and including the final version of the
policy proposed here.
The Services have a long history of working with Federal agencies
to develop Candidate Conservation Agreements, and such collaborative
efforts with other Federal agencies will continue to be a high
priority. Because of the proactive obligations for Federal agencies in
the Act, providing assurances through Candidate Conservation Agreements
is not appropriate for Federal agencies.
Providing assurances to non-Federal property owners is an
incentive-based approach to encourage these landowners to enter into
voluntary conservation programs while providing them certainty relative
to future obligations under the Act. The Services
[[Page 32185]]
can also enter into Candidate Conservation Agreements with State and
local land management agencies and provide the same assurances under
this new policy. In addition, the Services could also enter into
comprehensive ``umbrella'' agreements with State fish and wildlife
agencies and through such agreements provide assurances to any non-
Federal property owners. These assurances will only be provided to the
participating landowners or State or local land managing agencies but
not to State regulatory agencies. Therefore, after the finalization of
this policy and its incorporation into the Services' Candidate Species
Guidance, two basic types of Candidate Conservation Agreements would be
available: (1) Candidate Conservation Agreements without assurances and
(2) Candidate Conservation Agreements with assurances (exclusive for
non-Federal landowners).
The Services will focus the implementation of this policy on
proposed and candidate species with the goal of removing threats facing
these species and therefore preclude the need to list these species in
the future. The benefits derived from these proactive collaborative
conservation agreements can have significance in the Services' listing
decisions. This is especially true for Candidate Conservation
Agreements that provide assurances, since for the Services to provide
such assurances, the provisions to be carried out under these
agreements must be expected to remove the need to list the covered
species covered or be expected to remove the need to list if undertaken
by similarly situated landowners within the range of the covered
species. For species occurring primarily on Federal lands, a Candidate
Conservation Agreement without assurances would also, in some cases,
eliminate enough of the threats to the species and remove the need to
list. However, the determination whether these agreements will in fact
remove the need to list a species will be determined on a case-by-case
basis and with adequate public participation.
The Fish and Wildlife Service's proposed regulatory changes
necessary to implement this draft policy are published elsewhere in
this issue of the Federal Register. The proposed rule provides the Fish
and Wildlife Service's procedures to implement both the Safe Harbor
policy (also published elsewhere in this issue of the Federal Register)
and the Candidate Conservation Agreement policy. The National Marine
Fisheries Service will develop proposed regulatory changes implementing
these policies, to be published subsequently.
Candidate Conservation Agreement Policy
Part 1. Purpose
The ultimate goal of Candidate Conservation Agreements developed
under this policy is to encourage, to the extent feasible and
controllable by a participating property owner or State or local land
management agency, the removal of threats to the covered species so as
to nullify the need to list them as threatened or endangered under the
Act. Unlike Safe Harbor Agreements, which are developed only for listed
species, the targets of Candidate Conservation Agreements are proposed
and candidate species of fish, wildlife, and plants; species likely to
become candidate species in the near future may also be included. The
management and conservation benefits of activities carried out under
Candidate Conservation Agreements, if undertaken on a broad enough
scale by other property owners similarly situated within the range of
the species, should be expected to preclude the need for listing
species covered by the Agreement as threatened or endangered under the
Act. Safe Harbor Agreements, on the other hand, focus on the
restoration, enhancement, or maintenance of terrestrial and aquatic
habitats of listed species thereby contributing to their recovery.
While some property owners and State and local land management
agencies are willing to manage their lands and waters to benefit
proposed and candidate species, or species likely to become candidates
in the near future, most desire some degree of assurances relative to
future land- or resource-use restrictions. By providing regulatory
certainty in these Candidate Conservation Agreements, property owners
and agencies help define and know in advance what level of land- or
resource-use restrictions they may incur in the event the Services list
a species covered by an Agreement. If the Services list a covered
species in the future, incidental take authorization would be provided
to allow the property owner or State or local land management agency to
implement management activities that may result in take of individuals
or modification of habitat above those levels agreed upon and specified
in the Agreement. Without such assurances, most property owners and or
agencies will not have as much incentive to undertake candidate
conservation initiatives on their property.
Candidate Conservation Agreements and associated activities will be
developed in close coordination and cooperation with the appropriate
State fish and wildlife agencies and other affected State agencies and
Native American Tribal governments, as appropriate. The need for close
coordination with State fish and wildlife agencies is particularly
important given their primary responsibilities for unlisted resident
species. These Agreements are to be consistent with applicable State
laws and regulations governing the management of these species and must
be voluntary for the property owners or State or local land management
agency.
The Services must reasonably expect that the management actions
agreed to and included in any Agreement, if performed by all landowners
in similar situations, will be adequate to remove the threat(s) to
proposed, candidate, and species likely to become a candidate or
proposed species in the near future and are covered by the Agreement,
thereby eliminating the need to list the covered species. Pursuant to
section 7 of the Act, the Services must also ensure that those
management actions do not jeopardize listed or proposed species and do
not destroy or adversely modify proposed or designated critical
habitats that may occur in the area.
The Services recognize that some property owners or State or local
land managing agencies may not have the necessary resources or
expertise to develop Candidate Conservation Agreements. In such cases
where the willing property owner or agency lacks the resources or
expertise, the Services are committed to providing the necessary
technical assistance, to the maximum extent practicable and given
available resources, to develop effective Candidate Conservation
Agreements that will be sufficient to remove the need to list the
covered species. Further, the Services may also help carry out some
management actions (e.g., prescribed burning) or train property owners
in the implementation of management techniques.
Either Service or the Services jointly will work with the
participating landowner in the development of their permit application
and the Candidate Conservation Agreement. The Services will provide the
necessary technical assistance to the landowner in developing mutually
agreeable management actions that the landowner is willing to
voluntarily undertake or forgo that will provide a net conservation
benefit and help the landowner describe how these activities will
benefit covered species. Development of an acceptable permit
application and an adequate Candidate Conservation agreement is
intricately
[[Page 32186]]
linked. Either Service or the Services jointly will process the
participating landowner's permit application following the Candidate
Conservation permitting process as described in 50 CFR part 17. During
this permit process all parties to the Agreement will work in close
coordination in the development of the Agreement to ensure that
measures included in the agreement are consistent with the terms and
conditions of the permit. Once the permit is issued the parties to the
Agreement can finalize and sign the Agreement.
Availability of resources will also be a governing factor for the
Services. The Services expect the interest in Candidate Conservation
Agreements to be high and the demand for technical assistance to
property owners to be great. Candidate Conservation Agreements are
developed using candidate conservation funding which is extremely
limited; thus the Services may have to prioritize their participation
in Candidate Conservation Agreements based upon the conservation
benefits provided to the covered species. In addition, priority will be
given to Agreements where sufficient information exists to develop
sound conservation measures. The Services will work with State, Tribal,
and other interested parties to fill information gaps for species
requirements that have not been adequately documented in the scientific
literature.
Part 2. Definitions
The following definitions apply for the purposes of this policy.
``Candidate Conservation Agreement'' means an Agreement signed by
either Service, or both Services jointly, and a property owner, and any
other cooperator, if appropriate, or with a State or local land
management agency, that: (a) Sets forth specific management activities
that the private or non-Federal property owner, or State or local land
management agency, will voluntarily undertake to conserve the covered
species; (b) specifies management activities that are adequate to
remove the need to list the covered species, if such actions were
undertaken by other property owners similarly situated within the range
of the species; and (c) for agreements with assurances, provides the
property owner or State or local land management agency with the
Candidate Conservation assurances described within the Agreement and
authorized in the enhancement of survival permit.
``Candidate Conservation Assurances'' are assurances provided in
the Agreement and authorized in an enhancement of survival permit for
covered species, by either Service, or both jointly, to a non-Federal
property owner or State or local land management agency that would
allow the property owner or agency to take individuals of the covered
species or alter or modify habitat consistent with the levels agreed
upon and specified in the Agreement, even if the covered species are
eventually listed. Such assurances may apply to whole parcels, or
portions thereof, of the property owner's or land management agency's
property as designated in the Agreement. These assurances are dependent
upon the Agreement being adequate to remove the need to list the
covered species, if such actions were undertaken by other property
owners similarly situated within the range of the species. The
assurances are also dependent on the property owner's or land
management agency's compliance with the obligations in the Agreement
and in the enhancement of survival permit.
``Candidate species'' are defined differently by the Services based
on their different programs. The FWS defines a candidate species as a
species for which the FWS has sufficient information on file relative
to status and threats to support issuance of a proposed listing rule.
The National Marine Fisheries Service defines a candidate species as a
species for which concerns remain regarding their status, but for which
more information is needed before they can be proposed for listing. The
term ``candidate species'' used in this policy refers to those species
designated as candidates by either of the Services.
``Covered species'' means a species that is the subject of a
Candidate Conservation Agreement. Covered species are limited to
species that are candidates or proposed for listing and species that
may become candidates or proposed in the near future. Those species
covered in the Agreement must be treated as if they were listed.
``Enhancement of survival permit'' means a permit issued under the
authority of section 10(a)(1)(A) of the Act.
``Management activities'' are voluntary conservation actions to be
undertaken by a property owner or State or local land management agency
that the Services believe will eliminate the need to list the species.
``Property owner'' includes, but is not limited to, private
individuals, organizations, businesses, Native American Tribal
governments, and other non-Federal entities.
``Proposed species'' is a species for which the Services, based on
the best available scientific and commercial information, have
published a proposed rule to list it as an endangered or threatened
species under provision of section 4 of the Act.
Part 3. Candidate Conservation Agreements
The Agreement will identify:
A. At the time the parties negotiate the Agreement, the existing
population levels (if available or determinable) of the covered
species, or the existing habitat characteristics that sustain any
current, permanent, or seasonal use by the covered species on lands or
waters under the property owner's or State or local land management
agency's control, or habitat characteristics that support populations
of covered species in waterways that may not be under the property
owner's or agency's control must be determined;
B. The management actions the property owner or State or local land
management agency is willing to undertake to conserve the covered
species included in the Agreement. The Services, or either Service,
must have determined that these management actions are of sufficient
design to remove the threat(s) to those species adequately to avoid
listing, or be sufficient enough, if undertaken by other property
owners or agencies similarly situated, to remove the threat(s) to avoid
listing;
C. An estimate of the expected conservation benefits as a result of
management actions described in B above (e.g., increase in population
numbers; enhancement, restoration, or preservation of suitable habitat)
and the conditions that the property owner or State or local land
management agency agrees to maintain that will remove the threats to
the species and eliminate the need to list the covered species. The
conservation benefits must remove the threats to the species adequately
to eliminate the need to list the species. In many cases, a single
property owner's or agency's activities alone will not be sufficient to
eliminate the need to list. In such cases, the Services will enter into
an Agreement when the activities to be carried out by the property
owner or agency, if conducted by other property owners or agencies
throughout the range of the affected species, would be expected to
adequately remove threat(s) to the species to eliminate the need to
list;
D. Assurances provided by the Services that no additional
management actions would be required of the property owner or State or
local land
[[Page 32187]]
management agency above those agreed to in B above should the covered
species be listed in the future. In addition, the Services would
authorize actions that may result in incidental take consistent with
those levels agreed to in A and C above through a section 10(a)(1)(A)
Enhancement of Survival permit;
E. The level of monitoring necessary to determine how the species
is responding to the prescribed management activities should be built
into the Agreement or permission for the Services to conduct such
monitoring should be included in the Agreement; and,
F. A notification requirement, where appropriate and feasible, to
provide the Service, or Services, or appropriate State agencies with a
reasonable opportunity to rescue individual specimens of a covered
species before any authorized incidental taking occurs.
Part 4. Benefit to the Species
Before entering into an Agreement, the Services or either Service
must make a written finding that species included in such an Agreement
will receive a sufficient conservation benefit from the activities
conducted under the Agreement. This benefit must be expected to be of a
level that, if undertaken on a broad enough scale by other property
owners or State or local land management agencies similarly situated,
would be cumulatively significant enough to remove the need to list the
covered species. Expected benefits could include, but are not limited
to: reduction in habitat fragmentation rates; restoration and
enhancement of habitats; maintenance or increase of population numbers;
and reduction of the effects of catastrophic events. If the Service and
the property owner or land management agency cannot agree to a set of
management actions adequate to remove the need to list a species
covered in the Agreement if such actions were undertaken by other
property owners or agencies similarly situated within the range of the
species, the Service will not enter into the Agreement.
Part 5. Assurances to Property Owners
The Services, in the Candidate Conservation Agreement, will provide
that if any species covered by the Agreement is listed, and the
Agreement has been implemented in good faith by the participating
property owner or State or local land management agencies, the Services
will not assert additional restrictions or require additional actions
above those the property owner or State or local land management
agencies voluntarily committed to conduct, incur, or maintain under the
terms of the original Agreement. Such assurances will be provided to
the participating property owner or non-Federal land management agency
through a section 10(a)(1)(A) enhancement of survival permit, which
will allow the property owner or agency to implement management
activities that may result in take of individuals or modification of
habitat consistent with levels agreed upon and specified in the
Agreement. Under this process, the Services or either Service would
issue an enhancement of survival permit at the time of entering into
the Agreement. Such a permit would have a delayed effective date tied
to the date of any future listing for a covered species. The Services
believe that an enhancement of survival permit is particularly well
suited for the Candidate Conservation Agreement program because the
central purpose of such Agreements is to enhance the survival of
declining species. It is equally appropriate to issue such a permit to
a participating property or resource owner as a way of rewarding their
proactive voluntary conservation efforts and shielding such persons
from any additional restrictions which might otherwise affect them if a
species is subsequently listed.
Part 6. Public Review of Candidate Conservation Agreements
When a draft Candidate Conservation Agreement is developed for a
proposed species, the draft Agreement will be available for public
review. Whenever possible, the Services will invite public review and
comment on these Agreements for at least 30 days. In making final
listing determinations the Services will consider the conservation
benefits provided by these agreements and all comments received
regarding those conservation benefits. When providing assurances to a
non-Federal landowner or State or local land management agency through
a Candidate Conservation Agreement, the Services will invite public
review and comment on the Agreement prior to issuing any enhancement of
survival permit needed to provide the assurances.
Required Determinations
A major purpose of this proposed Candidate Conservation Agreements
Policy is the facilitation of voluntary cooperative programs for the
proactive management of non-Federal lands and waters for the benefit of
proposed and candidate species and species likely to become candidates
in the near future. From the Federal government's perspective,
implementation of this policy would result in minor expenditures (e.g.,
providing technical assistance in the development of site-specific
management plans). The benefits derived from such management actions on
non-Federal lands and waters would remove threats to proposed,
candidate, or other soon to become candidate species. Non-Federal
program participants would be provided regulatory certainty as a result
of their voluntary management actions. In some cases, such participants
may incur minor expenditures to carry out some management actions on
their lands or involving their water. The Services have determined that
the proposed rule would not result in significant costs of
implementation to the Federal government or to non-Federal program
participants.
The Director of the Fish and Wildlife Service certified to the
Chief Counsel for Advocacy of the Small Business Administration that a
review under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.) has revealed that this policy would not have a significant effect
on a substantial number of small entities, which includes businesses,
organizations, or governmental jurisdictions. Because of the completely
voluntary nature of the Candidate Conservation program, no significant
effects are expected on non-Federal cooperators exercising their option
to enter into a Candidate Conservation Agreement. Therefore, this
policy would have minimal effect on such entities. NMFS concurs with
this certification. This policy was not subject to review by the Office
of Management and Budget under Executive Order 12866.
The Services have determined and certify pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., 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. The Departments have determined that
this proposed policy meets the applicable standards provided in
sections 3(a) and 3(b)(2) of Executive Order 12988.
The Department has determined that the issuance of the proposed
policy is categorically excluded under the Department of Interior's
NEPA procedures in 516 DM 2, Appendix 1.10. NMFS concurs with the
Department of Interior's determination that the issuance of the
proposed policy qualifies for a categorical exclusion and falls within
the categorical exclusion criteria in NOAA 216-3 Administrative Order,
Environmental Review Procedure.
[[Page 32188]]
Public Comments Solicited
The Services request comments on their Draft Policy for Candidate
Conservation Agreements. Particularly sought are comments on the
procedures or methods for enhancing the utility of the Candidate
Conservation Agreements Policy in carrying out the purposes of the Act.
In addition, situations may arise where a property owner may want
to recover or conserve numerous species, both listed and unlisted on
their property, and may want to enter into both a Candidate
Conservation Agreement and a Safe Harbor Agreement. The Services are
also seeking comments and are interested in ideas and suggestions on
the ways to streamline and combine these processes when developing
these two types of agreements with the same property owner. The
Services will take into consideration the comments and any additional
information received by the Services by August 11, 1997.
Dated: May 27, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
Dated: June 2, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Oceanic and Atmospheric
Administration.
[FR Doc. 97-15249 Filed 6-9-97; 1:26 pm]
BILLING CODE 4310-55-P
