[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Notices]
[Pages 32178-32183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15250]
[[Page 32177]]
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Part III
Department of the Interior
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Fish and Wildlife Service
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Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 13 and 17
Announcements: Draft Safe Harbor Policy and Candidate Conservation
Agreements Draft Policy, Notices; and Safe Harbor and Candidate
Conservation Agreements; Proposed Rule
Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 /
Notices
[[Page 32178]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Announcement of Draft Safe Harbor Policy
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 Safe Harbor Policy
under the Endangered Species Act of 1973, as amended (Act). Many
endangered and threatened species occur exclusively or to a large
extent upon privately owned property; the involvement of the private
sector in the conservation and recovery of species is critical to the
eventual success of these efforts. This policy would provide incentives
for private and other non-Federal property owners to restore, enhance
or maintain habitats for listed species. Either Service, or the
Services jointly, will closely coordinate with the appropriate State
agencies and any affected Native American Tribal governments before
entering into Safe Harbor Agreements (Agreements). Under the policy,
either Service, or the Services, jointly, would provide participating
property owners with technical assistance in the development of
Agreements and would provide assurances that additional land-use or
resource-use restrictions as a result of their voluntary conservation
actions to benefit covered species would not be imposed. If the
Agreement provides a net conservation benefit to the covered species
and the property owner meets all the terms of the Agreement, the
Services would authorize the incidental taking of the covered species
to enable the property owner to ultimately return the enrolled property
back to agreed upon baseline conditions. The Services seek public
comment on the draft policy. Additionally, the Fish and Wildlife
Service (FWS) has published in today's Federal Register a proposed rule
that contains the necessary regulatory changes to implement this
policy. The Services also seek public comment on the appropriateness of
allowing a property owner to enter into a Safe Harbor Agreement in
conjunction with a Habitat Conservation Plan (HCP) under section
10(a)(1)(B) of the Act.
DATES: Comments on the draft policy must be received by August 11,
1997.
ADDRESSES: Send any comments or materials concerning the Draft Safe
Harbor Policy 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 by private citizens, States,
municipalities, Native American Tribal governments, and other non-
Federal entities. Conservation efforts on non-Federal property are
critical to the survival and recovery of many endangered and threatened
species. The Services strongly believe that a collaborative stewardship
approach to the proactive management of listed species involving
government agencies (Federal, State, and local) and the private sector
is critical to achieving the ultimate goal of the Endangered Species
Act (Act). The long-term recovery of certain species can benefit from
short-term and mid-term enhancement, restoration, or maintenance of
terrestrial and aquatic habitats on non-Federal property.
Many property owners are willing to voluntarily manage their
property to benefit listed fish and wildlife, provided that such
actions do not result in new restrictions being placed on the future
use of their property. Beneficial management could include actions to
enhance, restore, or maintain habitat (e.g., restoring fire by
prescribed burning, restoring hydrological conditions), so that it is
suitable for listed species. Such proactive management actions cannot
be mandated or required by the Act. Thus, failure to conduct habitat
enhancement or restoration activities would not violate any of the
Act's provisions. Although property owners recognize the benefits of
proactive habitat conservation activities to help listed species, some
are still concerned about additional land-use or resource-use
restrictions that may result if listed species colonize their property
or increase in numbers or distribution because of their conservation
efforts. Concern centers on the applicability of the Act's section 9
``take'' prohibitions if listed species occupy their property and on
future property-use restrictions that may result from their
conservation-oriented property management actions. The potential for
future land- or resource-use restrictions has led property owners to
avoid or limit property management practices that could enhance or
maintain habitat and benefit or attract fish and wildlife that are
currently Federally listed as endangered or threatened.
A fundamental purpose of section 2 of the Act, is to conserve the
ecosystems upon which endangered and threatened species depend and to
conserve listed species. Section 9 of the Act prohibits the ``take'' of
listed fish and wildlife species, which is defined in section 3(18) to
include, among other things, killing, harming or harassing. The Act's
implementing regulations (50 CFR 17.3), as promulgated by the FWS,
define ``harm'' to include ``significant habitat modification or
degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
breeding, feeding and sheltering.'' Regulations in 50 CFR 17.31 extend
the prohibition against take to threatened fish and wildlife species.
Consequently, property owners whose properties support endangered or
threatened species could violate section 9 of the Act if the property
owners significantly develop, modify, or manage those properties in a
way that causes harm to listed species.
The Services' draft Safe Harbor Policy encourages property owners
to voluntarily conserve threatened and endangered species without the
risk of further restrictions pursuant to section 9. Previously the FWS
has provided safe harbor type assurances to non-Federal property owners
based on various authorities under the Act, including incidental take
statements under section 7(a)(2) and incidental take permits under
section 10(a)(1)(B). After further consideration of such alternatives
and other provisions of the Act, the Services have determined that the
section 10(a)(1)(A) ``enhancement of survival'' permit provisions of
the Act provide the best mechanism to carry out the Safe Harbor Policy
and provide the necessary assurances for participating property owners
while also providing conservation benefits to the covered species.
Assurances already provided by
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the FWS under sections 7 or 10(a)(1)(B) would still be valid, and
revision of those proactive Agreements is unnecessary. The Services are
developing this policy to provide national consistency in the
development of Safe Harbor Agreements and link the policy to an
expanded enhancement of survival permit program through section
10(a)(1)(A) of the Act.
The FWS's proposed regulatory changes necessary to implement this
draft policy were published in today's Federal Register. The proposed
rule provides the FWS's procedures to implement the Safe Harbor Policy
as well as other changes to Parts 13 and 17. The National Marine
Fisheries Service will develop and propose regulatory changes to
implement this policy at a later date.
Draft Safe Harbor Policy
Part 1. Purpose
Because many endangered and threatened species occur exclusively,
or to a large extent, upon privately owned property, the involvement of
the private sector in the conservation and recovery of species is
critical to the eventual success of these efforts. Private property
owners are willing to be partners in the conservation and recovery of
fish, wildlife, and plant species and their habitats. However, property
owners often are reluctant to undertake proactive activities that
increase the likelihood or extent of use of their properties by
endangered and threatened species, due to fear of future additional
property-use restrictions. Safe Harbor Agreements are a means of
providing an incentive to property owners to restore, enhance, or
maintain habitats resulting in a net conservation benefit to endangered
and threatened species. Although such Agreements may not permanently
conserve such habitats, they nevertheless offer important short-term
and mid-term conservation benefits. These net conservation benefits may
result from reduction of fragmentation and increasing the connectivity
of habitats, maintaining or increasing populations, insuring against
catastrophic events, enhancing and restoring habitats, buffering
protected areas, and creating areas for testing and implementing new
conservation strategies.
The purpose of the Safe Harbor Policy is to ensure consistency in
the development of Safe Harbor Agreements. Safe Harbor Agreements
encourage proactive species conservation efforts by private and other
non-Federal property owners while providing certainty relative to
future property-use restrictions, if these efforts attract listed
species onto their properties, or areas affected by actions undertaken
on their property, or increase the numbers or distribution of listed
species already present on their properties. These voluntary Agreements
will be developed between, either Service, or the Services jointly, and
private and other non-Federal property owners. The Services will
closely coordinate development of these Agreements with the appropriate
State fish and wildlife or other agencies and any affected Native
American Tribal governments. Collaborative stewardship with State fish
and wildlife agencies is particularly important given the partnerships
that exist between the States and the Services in recovering listed
species. Under a Safe Harbor Agreement, participating property owners
would voluntarily undertake management activities on their property to
enhance, restore, or maintain habitat to benefit Federally-listed
species.
Safe Harbor Agreements may be initiated by property owners, or,
either Service or the Services jointly, may take the initiative on
their own or in concert with other Federal or State agencies to
encourage property owners to voluntarily enter Safe Harbor Agreements
for a given area, particularly when many non-Federal parcels of
property are involved. Either Service or the Services jointly, will
work with the participating landowner in the development of their
permit application and the Safe Harbor 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 Safe Harbor agreement is intricately
linked. Either Service or the Services jointly will process the
participating landowner's permit application following the Safe Harbor
permitting process as described in Title 50 of the Code of Federal
Regulations Part 17. During this 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.
The Services recognize that Safe Harbor Agreements are not
appropriate under all circumstances. In particular, in situations when
property owners are seeking immediate take authorization, development
of a Habitat Conservation Plan (HCP) and issuance of an incidental take
permit under section 10(a)(1)(B) would be more appropriate. Safe Harbor
Agreements are also not appropriate in situations that do not meet the
net conservation benefit standards of this policy. For example, where
either Service or the Services jointly, reasonably anticipate that a
proposed Agreement would only redistribute the existing population of a
listed species or attract a species away from a habitat that enjoys
long-term protection to a habitat without such protection, the Services
would not enter into the Agreement. As another example, where a species
is so depleted or its habitat so degraded that some improvement over
baseline conditions is necessary to result in a net conservation
benefit, a Safe Harbor Agreement may not be appropriate. For instance,
certain aquatic, riverine, and/or riparian species may present a
challenge in reaching a net conservation benefit since returning to the
baseline conditions could have serious negative effects and would
negate or outweigh the benefits achieved through the Agreement. In
these cases, if a net conservation benefit cannot be achieved after
taking into consideration the return to the baseline conditions, the
Services will not enter into a Safe Harbor Agreement unless the
Services and the property owner agree to appropriate conditions that
provide such a benefit.
Availability of resources will also be a governing factor for the
Services. The Services expect the interest in Safe Harbor Agreements to
rise and the demand for technical assistance to property owners to
increase. Safe Harbor Agreements are developed using limited funds
appropriated for recovery activities. Priority will, therefore, be
given to Agreements that provide the greatest contribution to the
recovery of multiple listed species. Another governing factor will be
whether there is sufficient information 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.
``Baseline conditions'' for covered species means population
estimates and distribution (if available or determinable) and/or
habitat
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characteristics of enrolled property that sustain seasonal or permanent
use, at the time the Safe Harbor Agreement is executed between either
Service or the Services jointly and the property owner.
``Covered species'' means a species that is the intended subject of
a Safe Harbor Agreement. Covered species are limited to species that
are Federally listed as endangered or threatened.
``Enhancement of Survival Permit'' means a permit issued under the
authority of section 10(a)(1)(A) of the Act.
``Enrolled property'' means all private or non-Federal property or
waters covered by a Safe Harbor Agreement to which safe harbor
assurances apply and on which incidental taking is authorized under the
enhancement of survival permit.
``Management activities'' are voluntary conservation actions to be
undertaken by a property owner that either Service or the Services
jointly believe will benefit the status of the covered species.
``Net conservation benefit'' means the cumulative results of the
management activities identified in an Agreement that provide for an
increase in a species' population and/or the enhancement, restoration
or maintenance of covered species' suitable habitat within the enrolled
property, taking into account the length of the Agreement and the
incidental taking allowed by the permit. Net conservation benefits must
be sufficient to contribute to the recovery of the covered species if
undertaken by other property owners similarly situated within the range
of the covered species.
``Property owner'' includes, but is not limited to, private
individuals, organizations, businesses, Native American Tribal
governments, State and local governments, and other non-Federal
entities.
``Safe Harbor Agreement'' means an Agreement signed by either
Service, or both Services jointly and a property owner and any other
cooperator, if appropriate, that: (a) Sets forth specific management
activities that the private or non-Federal property owner will
voluntarily undertake or forgo that will provide a net conservation
benefit to covered species; and (b) provides the property owner with
the Safe Harbor assurances described within the Agreement and
authorized in the enhancement of survival permit.
``Safe Harbor Assurances'' are assurances provided in the Agreement
and authorized in the enhancement of survival permit for covered
species, by either Service, or both jointly, to a non-Federal property
owner. These assurances would allow the property owner to alter or
modify enrolled property, even if such alteration or modification will
result in the incidental take of a listed species that would return the
species back to the originally agreed upon baseline conditions. Such
assurances may apply to whole parcels, or portions thereof, of the
property owner's property as designated in the Agreement. These
assurances are dependent upon compliance with the property owners'
obligations in the Agreement and in the enhancement of survival permit.
Part 3. Cooperation and Coordination With the States and Tribes
Coordination with the appropriate State agencies and any affected
Tribal governments is critical for the success of the Services'
collaborative stewardship approach to recovery through these Safe
Harbor Agreements, which is the underlying principle of the Safe Harbor
Policy. Coordination among the State fish and wildlife agencies, Tribal
governments, the Services, and the property owners are key to
effectively implementing a successful Safe Harbor Agreement. This
coordination allows the special local knowledge of all appropriately
affected entities to be considered in the Agreements. The Services will
work in close partnership with State agencies on matters involving the
distribution of materials describing the Safe Harbor Agreement policies
and programs, the determination of acceptable baseline conditions and
development of appropriate monitoring efforts. Because of the Services'
trust responsibilities, the Services will also closely coordinate and
consult with any affected Tribal government which has a treaty right to
any fish or wildlife resources covered by a Safe Harbor Agreement.
Part 4. Species Net Benefit From Safe Harbor Agreements
Before entering into any Safe Harbor Agreement, either Service, or
the Services jointly, must make a written finding that all covered
species would receive a net conservation benefit from management
actions undertaken pursuant to the Agreement. Net conservation benefits
must contribute to the recovery of the covered species. Although a Safe
Harbor Agreement does not have to provide permanent conservation for
enrolled property, Agreements must nevertheless be of sufficient design
and duration to provide a net conservation benefit to all covered
listed species.
Conservation benefits from Safe Harbor Agreements may include
reduction of habitat fragmentation rates; the maintenance, restoration
or enhancement of habitats; increase in habitat connectivity;
maintenance or increase of population numbers or distribution;
reduction of the effects of catastrophic events; establishment of
buffers for protected areas; and establishment of areas to test and
develop new and innovative conservation strategies. The Services
believe a ``net conservation benefit'' test is necessary to justify the
issuance of an enhancement of survival permit under section 10(a)(1)(A)
of the Act. The contribution to the recovery of listed species by Safe
Harbor Agreements must be evaluated carefully, since realized benefits
from these agreements will be affected by the duration of the
Agreement.
The Services believe that there are many listed species that will
benefit from management actions carried out for the duration of Safe
Harbor Agreements even if there is a return to baseline conditions.
Returning the habitat or population numbers to the baseline conditions
must be possible without negating the net conservation benefit provided
by the Agreement. If this net conservation benefit standard cannot be
met, then the Services will not enter into the Agreement. For example,
where the Services reasonably anticipate that a proposed Agreement
would only redistribute the existing population of a listed species or
attract a species away from a habitat that enjoys long-term protection
to a habitat without such protection, the Services would not enter into
the Agreement. Aquatic, riverine, and/or riparian species may present
an additional challenge in reaching a net conservation benefit since
returning to the baseline conditions could have a serious negative
effect and would negate or outweigh the benefits achieved through the
Agreement. In these cases, if a net conservation benefit cannot be
achieved, and still allow for the return to the baseline conditions,
the Services will not enter into a Safe Harbor Agreement.
Part 5. Standards for and Development of a Safe Harbor Agreement and
Permit Issuance Under Section 10(a)(1)(A) of the Act
A property owner may obtain a permit to incidentally take a listed
species of fish and wildlife above the agreed upon baseline conditions
of the Safe Harbor Agreement, if the Agreement satisfies the following
requirements:
The Agreement must--
(1) Specify the species and/or habitats and identify the enrolled
property covered by the Agreement;
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(2) Describe the agreed upon baseline conditions for each of the
covered species within the enrolled property;
(3) Identify management actions that would accomplish the expected
net conservation benefits to the species and the agreed upon timeframes
for these management actions to remain in effect in order to achieve
the anticipated net conservation benefits;
(4) Describe the anticipated results of the management actions and
any incidental take associated with the management actions;
(5) Incorporate a notification requirement, where appropriate and
feasible, to provide either Service, or Services jointly, or
appropriate State agencies with a reasonable opportunity to rescue
individual specimens of a covered species before any authorized
incidental taking occurs;
(6) Describe the nature of the expected incidental take upon
termination of the Agreement (i.e., back to baseline conditions);
(7) Satisfy other requirements of section 10 of the Act; and
(8) Identify the responsible parties that will monitor maintenance
of baseline conditions, implementation of terms and conditions of the
Agreement, and any incidental take as authorized in the permit.
Issuance of a Safe Harbor permit by the Services is subject to
consultation under the intra-Service consultation provisions of section
7 of the Act.
Part 6. Baseline Conditions
Either Service, or the Services jointly, the property owner, and
any other cooperator(s) must accurately describe the baseline
conditions for the property and species covered by the Safe Harbor
Agreement to ensure that the Agreement will not reduce current
protection for covered species that presently may use the enrolled
property, or result in additional restrictions for such species beyond
the baseline conditions. The baseline conditions must reflect the known
biological and habitat characteristics that are necessary to support
existing levels of use of the property by species covered in the
Agreement. However, in light of circumstances beyond the control of the
property owner (e.g., loss of nest trees due to storm damage), the
parties to the Agreement may revise the baseline conditions to reflect
the new circumstances and may develop a new baseline upon which all
parties agree.
(A) Determining the Baseline Conditions
This Policy requires a full description of baseline conditions for
any species covered in an Agreement (see Part 5 above). Either Service
or the Services jointly, or appropriate State or Tribal agencies, with
the concurrence of the participating property owner, will describe the
baseline conditions for the enrolled property in terms appropriate for
the covered species such as: number and location of individual animals,
if available or determinable; necessary habitat characteristics that
support the species covered by the Agreement; and other appropriate
attributes. On-site inspections, maps, aerial photographs, remote
sensing, or other similar means can help determine baseline conditions.
To the extent determinable, the parties to the Agreement must identify
and agree on the level of occupation (permanent or seasonal) by covered
species on the enrolled property. For species that are extremely
difficult to survey and quantify, an estimate or an indirect measure
(e.g., number of suitable acres of habitat needed to sustain a member
of the species) is acceptable. Either Service or the Services jointly,
will develop the estimate following a protocol agreed upon by all
parties to the Agreement. Baseline conditions are then set, based upon
the agreed upon measurements or estimates. Either Service or the
Services jointly, the property owner or the property owner and any
other appropriate agency or government acting in cooperation with
either Service or the Services jointly, may determine the baseline
conditions. When either Service does not directly determine the
baseline conditions, they must review and concur with the determination
before entering into an Agreement. Formulation of baseline conditions
can incorporate information provided by the property owner, any other
appropriate agency, or species experts, as appropriate.
(B) Plants
The Act's ``take'' prohibitions generally do not apply to listed
plant species on private property. Therefore, the incidental take
assurances provided in this policy are usually not necessary for listed
plant species. However, the Services strongly encourage and often enter
into Agreements with non-Federal property owners to restore and enhance
habitats for listed plants.
Either Service or the Services jointly, must review the effects of
their own actions (e.g., issuance of a permit) on listed plants, even
when those plants are found on private property under section 7 of the
Act. In approving an enhancement of survival permit and entering into a
Safe Harbor Agreement, either Service or the Services jointly, must
also confirm under section 7 that the Agreement will not ``jeopardize
the continued existence'' of listed plants. In the interest of
conserving listed plants and complying with their responsibilities
under section 7, either Service or the Services jointly, may negotiate
with the property owner to voluntarily assist the Services in restoring
or enhancing listed plant habitats present within the enrolled
property.
(C) Future Section 7 Considerations and Assurances
Before entering into a Safe Harbor Agreement, the either Service or
the Services jointly, must conduct an intra-Service section 7 review.
During that process, either Service or the Services jointly, must
determine that future property use changes within the enrolled property
and incidental take consistent with the established baseline conditions
will neither jeopardize listed species of fish and wildlife or plants,
nor destroy or adversely modify critical habitat at the time of signing
the Agreement. If a future Federal nexus to the enrolled property
prompts the need for a section 7 review and take of the listed species
above the baseline conditions is likely, either Service or the Services
jointly, will issue a non-jeopardy biological opinion and incidental
take statement to the Federal action agency. As required by section 7
and its implementing regulations, either Service or the Services
jointly, will also provide the Federal agency with reasonable and
prudent measures that are necessary or appropriate to minimize the
effects of the action. Those measures will only require implementation
of the same terms and conditions provided to the participating
landowner in his/her Safe Harbor Agreement and associated 10(a)(1)(a)
permit. This approach is warranted and consistent with section 7
consultation procedures because the effects of any incidental take
consistent with the established baseline conditions would have been
previously considered during the Services' intra-agency section 7
review for the proposed Agreement.
Part 7. Assurances to Property Owners
A property owner who enters an Agreement and wishes to return
enrolled property to the baseline conditions would need to show that
the agreed upon baseline conditions were maintained and that activities
identified in the Agreement as necessary to achieve the net
conservation benefit were carried out for the duration of the
agreement. If the property owner carried out the management actions and
complied with the permit and the
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Agreement conditions, the property owner would be authorized to utilize
his/her property in a manner which returns the enrolled property to
baseline conditions.
Part 8. Occupation by Non-Covered or Newly Listed Species
After an Agreement is signed and an enhancement of survival permit
is issued, a species not addressed in the Agreement may occupy enrolled
property. If either Service or the Services jointly, conclude that the
species is present as a direct result of the property owner's
conservation actions taken under the Agreement, either Service or the
Services, will:
(1) At the request of the property owner, amend the Agreement to
reflect the changed circumstances and revise the baseline condition
description, as appropriate; and
(2) Review and revise the permit, as applicable, to address the
presence of additional listed species on enrolled property.
Assurances in the permit may not necessarily be extended to a non-
covered species if the species was specifically excluded from the
original Agreement as a result of the participating property owner's
request, or its presence is a result of activities not directly
attributable to the property owner. In these cases, enhancement or
maintenance actions that are specific to the non-covered species under
consideration must be developed, and baseline conditions determined
that will provide a net conservation benefit to that species.
Any substantial change to a Safe Harbor Agreement or a revision to
an enhancement of survival permit because of non-covered species would
be subject to the same review process (i.e., section 7 of the Act or
public review) as the original Safe Harbor agreement and enhancement of
survival permit.
Part 9. National Environmental Policy Act Compliance
The National Environmental Policy Act of 1969 (NEPA), as amended,
and the regulations of the Council on Environmental Quality (CEQ)
require all Federal agencies to examine the environmental impact of
their actions, to analyze a full range of alternatives, and to utilize
public participation in the planning and implementation of their
actions. The purpose of the NEPA process is to help Federal agencies
make better decisions and to ensure that those decisions are based on
an understanding of environmental consequences. Federal agencies can
satisfy NEPA requirements by either a Categorical Exclusion,
Environmental Assessment (EA), or Environmental Impact Statement (EIS),
depending on the effects of their proposed action.
Either Service or the Services jointly, will review each permit
action for other significant environmental, economic, social,
historical or cultural impact, or for significant controversy (516 DM
2, Appendix 2 for FWS and NOAA's Environmental Review Procedures and
NOAA Administrative Order Series 216-6). If either Service or the
Services jointly, expect that significant impact could occur, the
issuance of a permit would require preparation of an EA or EIS. General
guidance on when the Services exclude an action categorically and when
and how to prepare an EA or EIS is found in the FWS's Administrative
Manual (30 AM 3) and NOAA Administrative Order Series 216-6. If a Safe
Harbor Agreement/permit is not expected to individually or cumulatively
have a significant impact on the quality of the human environment, then
the Agreement/permit may be categorically excluded.
Part 10. Transfer of Ownership
If a property owner who is party to a Safe Harbor Agreement
transfers ownership of the enrolled property, either Service or the
Services, will regard the new owner as having the same rights and
obligations with respect to the enrolled property as the original
property owner if the new property owner agrees to become a party to
the original Agreement. Actions taken by the new participating property
owner that result in the incidental take of species covered by the
Agreement would be authorized if the new property owner maintains the
baseline conditions. The new property owner, however, would neither
incur responsibilities under the Agreement nor receive any assurances
relative to section 9 restrictions from the Agreement unless the new
property owner becomes a party to the Agreement.
A Safe Harbor Agreement must commit the participating property
owner to notify the Services of any transfer of ownership at the time
of the transfer of any property subject to the Agreement. This will
allow the Services to contact the new property owner to explain the
prior Safe Harbor Agreement and to determine whether the new property
owner would like to continue the original Agreement or enter a new
Agreement. When a new property owner continues an existing Safe Harbor
Agreement, either Service or the Services jointly, will honor the
baseline conditions for the enrolled property under consideration.
Part 11. Property Owner Discretion
Nothing in this policy prevents a participating property owner from
implementing management actions not described in the Agreement, so long
as such actions maintain the baseline conditions. Either Service or the
Services jointly, will provide technical advice, to the maximum extent
practicable, to the property owner when requested.
Part 12. Discretion of All Parties
Nothing in this policy compels any party to enter a Safe Harbor
Agreement at any time. Entering a Safe Harbor Agreement is voluntary
and presumes that the Agreement will serve the interests of all
affected parties. Unless specifically noted, an Agreement does not
otherwise create or waive any legal rights of any party to the
Agreement.
Part 13. Scope of Policy
This policy applies to all federally-listed species of fish and
wildlife administered by either Service or the Services jointly, as
provided in the Act and its implementing regulations.
Required Determinations
A major purpose of this proposed policy is the facilitation of
voluntary cooperative programs for the proactive management of non-
Federal lands and waters for the benefit of listed species. 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 significantly advance the recovery of listed 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 policy 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
[[Page 32183]]
entities, which includes businesses, organizations, or governmental
jurisdictions. Because of the completely voluntary nature of the Safe
Harbor program, no significant effects are expected on non-Federal
cooperators exercising their option to enter into a Safe Harbor
Agreement. Therefore, this policy would have minimal effect on such
entities.
This policy has been determined to be not significant for purposes
of Executive Order 12866. Therefore, it was not subject to review by
the Office of Management and Budget.
The Services have determined and certify pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this proposed 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 these proposed policy meets the applicable standards provided in
sections 3(a) and 3(b)(2) of Executive Order 12988.
The Services have examined this proposed policy under the Paperwork
Reduction Act of 1995 and found it to contain no requests for
additional information or increase in the collection requirement other
than those already approved under the Paperwork Reduction Act of 1995
for incidental take permits with OMB approval #1018-0022 which expires
July 31, 1997. The Service requested renewal of the OMB approval and in
accordance with 5 CFR 1320 will not continue to collect the
information, if the approval has expired, until OMB approval has been
obtained.
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.
Public Comments Solicited
The Services request comments on their Draft Safe Harbor Policy.
Particularly sought are comments on the procedures or methods for
enhancing the utility of the Safe Harbor Policy in carrying out the
purposes of the Act.
The Services also are interested in the views of interested parties
on the appropriateness of linking ``Safe Harbor'' Agreements to
incidental take permits issued under section 10(a)(1)(B) of the Act. In
certain situations, HCP permittees might be willing to conduct
activities that would enhance listed species populations above their
mitigation obligations under an incidental take permit or HCP. The
Services are interested in ideas, comments, and suggestions on this
concept. The Services also are requesting ideas, comments or
suggestions on how to delineate the baseline conditions for a Safe
Harbor Agreement that is linked to an HCP incidental take permit. After
consideration of all comments received on this question, the Services
will decide whether it is appropriate to utilize Safe Harbor Agreements
in connection with HCPs.
If the Services decide that it is appropriate to provide these
assurances to incidental take permittees, the Services will publish a
proposed policy on how best to provide such assurances.
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 Safe Harbor Agreement
and a Candidate Conservation 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. To
ease review and consideration of submitted comments, the Services
prefer that reviewers organize their comments by part (e.g., Part 1.
Purpose, Part 2. Definitions, and linking Safe Harbor Agreements with
HCP permits).
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. 97-15250 Filed 6-9-97; 1:26 pm]
BILLING CODE 4310-55-P
