[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Notices]
[Pages 32726-32736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15257]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
Announcement of Final Policy for Candidate Conservation
Agreements with Assurances
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Announcement of final policy.
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SUMMARY: The Fish and Wildlife Service (FWS) and the National Marine
Fisheries Service (NMFS) (jointly the Services) announce a joint final
Policy for Candidate Conservation Agreements (Agreements) with
Assurances under the Endangered Species Act of 1973, as amended (Act).
This policy offers assurances as an incentive for non-Federal property
owners to implement conservation measures for species that are proposed
for listing under the Act as threatened or endangered, species that are
candidates for listing, and species that are likely to become
candidates or proposed in the near future. Published concurrently in
this Federal Register are the FWS's regulations necessary to implement
this policy.
DATES: This policy is effective July 19, 1999.
ADDRESSES: Chief, Division of Endangered Species, U.S. Fish and
Wildlife Service, 1849 C Street, N.W., Washington, D.C. 20240
(Telephone 703/358-2171, Facsimile 703/358-1735); or Chief, Endangered
Species Division, National Marine Fisheries Service, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910
(Telephone 301/713-1401, Facsimile 301/713-0376).
FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division
of Endangered Species, U.S. Fish and Wildlife Service (Telephone 703/
358-2171) or Marta Nammack, Endangered Species Division, National
Marine Fisheries Service (Telephone 301/713-1401).
SUPPLEMENTARY INFORMATION:
Background
On June 12, 1997, the Services issued a draft policy (62 FR 32183),
and the FWS issued proposed regulations to implement the policy (62 FR
32189). This policy is intended to facilitate the conservation of
proposed and candidate species, and species likely to become candidates
in the near future by giving citizens, States, local governments,
Tribes, businesses, organizations, and other non-Federal property
owners incentives to implement conservation measures for declining
species by providing certainty with regard to land, water, or resource
use restrictions that might be imposed should the species later become
listed as threatened or endangered under the Act. Under the policy,
non-Federal property owners, who enter into a Candidate Conservation
Agreement with assurances that commit them to implement voluntary
conservation measures for proposed or candidate species, or species
likely to become candidates or proposed in the near future, will
receive assurances from the Services that additional conservation
measures will not be required and additional land, water, or resource
use restrictions will not be imposed should the species become listed
in the future.
Much of the land containing the nation's existing and potential
fish and wildlife habitat is owned by private citizens, States, local
governments, Native American Tribal governments, businesses,
organizations, and other non-Federal entities. The future of many
declining species is dependent, wholly or in part, on conservation
efforts on these non-Federal lands. Such conservation efforts are most
effective and efficient when initiated early. Early conservation
efforts for proposed and candidate species, and species likely to
become candidates or proposed in the near future can, in some cases,
preclude or remove any need to list these species as threatened or
endangered under the Act.
By precluding or removing any need to list a species through early
conservation efforts, property owners can maintain land use and
development flexibility. In addition, initiating or expanding
conservation efforts before a species and its habitat are critically
imperiled increases the likelihood that simpler, more cost-effective
conservation options will still be available and that conservation will
ultimately be successful.
[[Page 32727]]
Early conservation efforts for declining species can be greatly
expanded through a collaborative stewardship approach. A collaborative
approach fosters cooperation and facilitates the exchange of ideas
among private citizens, Federal agencies, States, local governments,
Tribes, businesses, and organizations by involving all stakeholders in
the conservation planning process.
Candidate Conservation Agreements without assurances have been
effective mechanisms for conserving declining species, particularly
candidate species, and have, in some instances, precluded or removed
any need to list some species. Development of Agreements without
assurances will continue to be a high priority. However, most of these
Agreements have been between the Services and other Federal agencies
since non-Federal property owners have had little incentive to enter
such Agreements. Many non-Federal property owners are willing to manage
their lands to benefit fish, wildlife, and plants, especially those
species that are declining. However, some of these property owners are
reluctant to implement conservation measures for declining species
because of possible future land, water, or resource use restrictions
that may result from the Act's section 9 ``take'' prohibitions if their
conservation efforts cause a species to colonize their lands or
increase in numbers and the species is subsequently listed as
threatened or endangered. This policy is designed to provide these
property owners with the necessary assurances to remove these concerns
and encourage them to implement conservation measures for these
species.
Non-Federal property owners, who through a Candidate Conservation
Agreement with assurances commit to implement conservation measures for
a proposed or candidate species or a species likely to become a
candidate or proposed in the near future, will receive assurances from
the Services that additional conservation measures will not be required
and additional land, water, or resource use restrictions will not be
imposed should the species become listed in the future. These
assurances will be provided in the property owner's Agreement and in an
associated enhancement of survival permit issued under section
10(a)(1)(A) of the Act.
The Services must determine that the benefits of the conservation
measures implemented by a property owner under a Candidate Conservation
Agreement with assurances, when combined with those benefits that would
be achieved if it is assumed that conservation measures were also to be
implemented on other necessary properties, would preclude or remove any
need to list the covered species. ``Other necessary properties'' are
other properties on which conservation measures would have to be
implemented in order to preclude or remove any need to list the covered
species.
The kinds of conservation measures specified in an Agreement with
assurances will depend on the types, amounts, and conditions of, and
need for, the habitats existing on the property and on other biological
factors. Different kinds of conservation measures may benefit different
life stages or serve to fulfill different life history requirements of
the covered species. The amount of benefit provided by an Agreement
with assurances will depend on many factors, particularly the size of
the area on which conservation measures are implemented and the degree
of conservation benefit possible (e.g., through habitat restoration or
reduction of take). For example, an Agreement with assurances for a
property with a small area of severely degraded habitat could be
designed to achieve greater benefits than one for a property with a
large amount of slightly degraded habitat.
Because Candidate Conservation Agreements with assurances will be
designed with the goal of precluding or removing any need to list the
covered species, these Agreements can have significance in the
Services' listing decisions. However, the determination of whether
these Agreements do in fact preclude or remove any need to list the
covered species will be made on a case-by-case basis in accordance with
the listing criteria and procedures under section 4 of the Act.
Collaborative stewardship with State and Tribal fish and wildlife
agencies is particularly important in the development of Candidate
Conservation Agreements, given the statutory role of these entities
under the Act and their traditional conservation responsibilities and
authorities for resident species. The Services recognize that, under
some circumstances, a State, Tribal, or local agency or other entity
may be able to work more promptly, effectively, and efficiently with
individual property owners toward conservation of declining species.
Under this policy, the Services can enter into an ``umbrella'' or
programmatic Agreement with an appropriate State, Tribal, or local
agency or other entity. Such an Agreement and its associated
enhancement of survival permit would specify the assurances and take
allowances that could be distributed by the participating State,
Tribal, or local agency or other entity to individual property owners
who choose to participate under the umbrella Agreement. Appropriate
agencies for such programmatic Agreements include State or Tribal fish
and wildlife agencies and State, Tribal, or local land management
agencies. The State, Tribal, or local agency or other entity would be
the permittee and would issue Certificates of Inclusion (also called
Participation Certificates) to private property owners who satisfy the
terms and conditions of the State, Tribal, or local agency's or other
entity's programmatic Agreement and its associated ``enhancement of
survival'' permit.
The Services have a long history of developing Candidate
Conservation Agreements with Federal agencies, and these efforts will
continue to be a high priority. However, because subsections 7(a)(1)
and (a)(2) of the Act obligate Federal agencies to affirmatively
conserve listed species, an obligation not imposed upon non-Federal
property owners, the Services will not provide assurances to other
Federal agencies through these Agreements.
In 1994, the FWS prepared Draft Candidate Species Guidance, which
underwent public review and comment (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 final
policy will be incorporated into the FWS's final guidance on candidate
species conservation.
A final rule of the FWS's regulations necessary to implement this
policy is published concurrently in this issue of the Federal Register.
That final rule also includes the FWS's regulations necessary to
implement the Safe Harbor policy (also published concurrently in this
issue of the Federal Register). The NMFS will publish proposed
regulations to implement these policies at a later time.
Summary of Comments Received
The Services received more than 280 letters of comment on the draft
policy from Federal and State agencies, businesses and corporations,
conservation groups, religious organizations, trade associations,
private organizations, and individuals. The Services considered all of
the information and recommendations received from all interested
parties and made changes to the draft policy where appropriate. A few
commenters raised issues related to the FWS's draft implementing
regulations, and the FWS
[[Page 32728]]
has addressed these issues where appropriate in its final implementing
regulations also published in today's Federal Register. The following
is a summary of the comments on the draft policy and the Services'
responses.
Issue 1. Many commenters stated that the policy is inconsistent
with provisions of section 7(a)(1) of the Act that requires all Federal
agencies to use their authorities to conserve endangered and threatened
species.
Response 1. The Services believe that the policy is consistent with
provisions of section 7(a)(1) of the Act and enables the Services to
further satisfy the intent of this section of the Act. Entering into an
Agreement with assurances is completely voluntary for the Services, as
it is for property owners. The Services will enter into an Agreement
with assurances only if we have determined that the conservation needs
for covered species on the participating property owner's property are
adequately addressed in the Agreement.
By entering into a Candidate Conservation Agreement with
assurances, a property owner can obtain certainty that no additional
conservation measures will be required and no additional land, water,
and resource use restrictions will be imposed if the species is listed
in the future. If they cannot obtain such certainty, some property
owners might choose to eliminate or reduce the species' habitat before
listing occurs. An Agreement with assurances thus can further the
conservation of the covered species because it can prevent such losses
of existing habitat.
Issue 2. Many commenters believed that the policy is inconsistent
with provisions of section 7(a)(2) of the Act because it precludes
reinitiation of section 7 consultation on issuance of an enhancement of
survival permit. Also, many commenters believed that the Services
cannot guarantee that funding will be available to pay for additional
conservation measures needed to address unanticipated changes in
circumstances.
Response 2. The Services believe that the policy is consistent with
section 7(a)(2) of the Act. As applied to implementation of this
policy, section 7(a)(2) requires the Services to conduct a formal
intra-Service consultation on the issuance of an enhancement of
survival permit. The purpose of any consultation is to ensure that any
action authorized, funded, or carried out by a Federal agency,
including the issuance of an enhancement of survival permit by the
Services, is not likely to jeopardize the continued existence of any
listed or proposed species or result in the destruction or adverse
modification of designated or proposed critical habitat of such
species. Since the standard for Candidate Conservation Agreements with
assurances is the preclusion or removal of the need to list, the
Services believe that it is highly unlikely that the conservation
measures prescribed in an Agreement or any incidental take authorized
by the associated enhancement of survival permit would later be
discovered to adversely affect the covered species or any listed
species causing a need to reinitiate intra-Service consultation.
If unanticipated changes in circumstances occur that might warrant
modifications to the agreed upon conservation measures, the Services
would work with the property owner to seek mutually agreed upon
adjustments to those conservation measures that enhance their
effectiveness for the covered species. Thus, the Services and property
owners could agree to substitute the original agreed upon conservation
measures for new ones that would be no more costly but more effective
in addressing the changed circumstances. In this fashion, the
conservation goal for that property owner's property could still be
maintained.
The Services will not enter into an Agreement unless (1) the
threats to and the requirements of the covered species are adequately
understood so that the Services can determine that the agreed upon
conservation measures will be beneficial to the covered species; and
the effects of the agreed upon conservation measures are adequately
understood so that the Services can determine that they will not
adversely affect listed species or adversely modify critical habitat or
(2) any information gaps relating to the requirements of the covered
species or the effects of the conservation measures on the covered
species or listed species can be adequately addressed by incorporating
adaptive management principles into the Agreement. The Services believe
that, in many Agreements, the conservation measures prescribed for the
covered species will also benefit other species, including listed ones.
Moreover, the Services have significant resources and conservation
authorities that can be used to address the needs of species covered by
Agreements with assurances when unanticipated changes in circumstances
cause a need for additional conservation measures. Some funding for
additional conservation measures may come from existing appropriations
for either candidate conservation or recovery, depending on whether the
species is listed. When necessary, the Services will work with other
Federal, State, and local agencies, Tribal governments, conservation
groups, and private entities to implement additional conservation
measures for the species.
Finally, the Services are prepared as a last resort to revoke a
permit implementing a Candidate Conservation Agreement with assurances
where continuation of the permitted activity would be likely to result
in jeopardy to a species covered by the permit. Prior to taking such a
step, however, the Services would first have to exercise all possible
means to remedy such a situation.
Issue 3. Many commenters believed that the policy precludes
adaptive management.
Response 3. The Services encourage the inclusion of the principles
of adaptive management into Candidate Conservation Agreements with
assurances and associated enhancement of survival permits when
necessary, especially when new management techniques are being tested.
Adaptive management is a process of monitoring the implementation of
conservation measures, then adjusting future conservation measures
according to what was learned. Adaptive management can also include
testing of alternative conservation measures, monitoring the results,
and then choosing the most effective and efficient measures for long-
term implementation. Inclusion of adaptive management in Agreements
allows for up-front, mutually agreed upon changes to conservation
measures in response to changing conditions or new information.
By incorporating adaptive management into Agreements with
assurances and associated enhancement of survival permits, the Services
believe that these Agreements will have sufficient flexibility to
enable the Services and property owners to address reasonably
foreseeable changes in circumstances or new information.
Issue 4. Many commenters stated that Candidate Conservation
Agreements with assurances will undermine recovery of the covered
species once it is listed.
Response 4. The Services believe that this comment reflects
confusion regarding the standard required by the policy in all
Agreements with assurances. The policy requires the Services to
determine that the benefits of the conservation measures implemented by
a property owner under a Candidate Conservation Agreement with
assurances, when combined with those benefits that would be achieved if
[[Page 32729]]
it is assumed that conservation measures were also to be implemented on
other necessary properties, would preclude or remove any need to list
the covered species. Since this is essentially a recovery standard,
each property owner with an Agreement with assurances would contribute
to precluding or removing any need to list the covered species.
Therefore, if the covered species became listed, these property owners
would already be implementing conservation measures that address the
covered species' conservation needs on their properties.
Issue 5. Many commenters believed that the draft policy limited
public participation. Some stated that the draft policy was unclear as
to when the Services will solicit comments on Candidate Conservation
Agreements with assurances, and some commenters felt that the public
should be allowed to participate in the development of all Agreements.
In addition, many commenters said that Agreements should be subject to
citizen enforcement.
Response 5. The Services have changed the policy to clarify when
the public will have the opportunity to review and comment on
Agreements with assurances. The Services will make every Agreement with
assurances available for public review and comment as part of the
evaluation process for issuance of the enhancement of survival permit
associated with these Agreements. This comment period will generally be
30 days; the comment period for large-scale or programmatic Agreements
that may affect other natural resources will be at least 60 days.
The development of an Agreement with assurances consists primarily
of the preparation of a proposal by a non-Federal property owner to
modify voluntarily their current land management practices so as to
restore, enhance, or preserve habitat or to implement voluntarily other
conservation measures for declining species. Because development of
such a proposal is purely voluntary and involves private land use
decisions, public participation in the development of an Agreement with
assurances will only be provided when agreed to by the property owner.
However, the Services will encourage property owners to allow for
public participation during the development of an Agreement with
assurances, particularly if non-Federal public agencies (e.g., State
fish and wildlife agencies) are involved. The Services also will
encourage State or local agencies or other entities developing
``umbrella'' or programmatic Agreements, which would specify the
assurances and take allowances that could be further delegated by the
State or local agency or other entity to individual participating non-
Federal property owners, to provide extensive opportunities for public
involvement during the development process.
The public will also be given other opportunities to comment on
Agreements in cases that are related to a listing determination. When
one or more additional Agreements are completed after the covered
species is proposed for listing, and the Services determine, based upon
a preliminary evaluation, that all completed Agreements could
potentially justify withdrawal of the proposed listing, the comment
period for the proposed listing will be extended or reopened to allow
for public comments on the Agreements' adequacy in removing threats to
the species. The Services believe a preliminary evaluation of the
likelihood that the completed Agreements remove the need to list is
necessary in order to justify constricting the available time to reach
a final determination by extending or reopening the comment period on a
proposed rule.
The provisions of the Act providing for citizen suits will be
neither enhanced nor diminished in any way by the issuance of this
policy because it will be implemented through the enhancement of
survival permitting process recognized under the Act. To the extent
that the current Act allows for citizen lawsuits to challenge the
issuance of a given section 10(a) permit, nothing in this policy would
modify or alter that opportunity for possible judicial review.
Issue 6. Many commenters stated that all Candidate Conservation
Agreements with assurances should undergo independent scientific
review.
Response 6. In determining the need for independent scientific
review, the Services will consider the complexity of the Agreement, the
size of the geographic area covered, the number of species covered, the
presence of data gaps or scientific uncertainties, and other factors.
Scientific experts will often be asked to assist with development of
conservation measures and/or to review a draft Agreement. When
scientific experts are not specifically solicited to provide comments,
such individuals can submit comments during the general public review
and comment periods (see Response 5 above). In developing Agreements
with assurances, the Services may use existing State conservation plans
or strategies that have undergone scientific review, or the Services
may use other scientific information published in peer reviewed
journals.
Issue 7. Many commenters questioned the authority for and the
availability of adequate funding for the implementation of this policy.
Response 7. The Services believe that sections 2, 7, and 10 of the
Act allow the implementation of this policy. For example, section 2
states that ``encouraging the States and other interested parties
through Federal financial assistance and a system of incentives, to
develop and maintain conservation programs * * * is a key * * * to
better safeguarding, for the benefit of all citizens, the Nation's
heritage in fish, wildlife, and plants.'' The Services believe that
establishing a program for the development of Candidate Conservation
Agreements with assurances provides an excellent incentive to encourage
conservation of the Nation's fish and wildlife. Section 7 requires the
Services to review programs they administer and to ``utilize such
programs in furtherance of the purposes of this Act.'' The Services
believe that, in establishing this policy, they are utilizing their
Candidate Conservation Programs to further the conservation of the
Nation's fish and wildlife. Of particular relevance is section 10(a)(1)
which authorizes the issuance of permits to ``enhance the survival'' of
a listed species. From the perspective of the Services, a well designed
voluntary Candidate Conservation Agreement is the epitome of
conservation efforts designed to ``enhance the survival'' of the
covered species.
Funding is available to implement this policy through annual
appropriations. The Services are currently working on Candidate
Conservation Agreements without assurances, and with finalization of
this policy the Services will use available resources to develop
Agreements with assurances as well. The FWS is currently implementing
over 40 conservation agreements (without assurances) and actions
benefitting over 200 species. Several of these conservation agreements
and actions have successfully precluded or removed threats so that
listing by the Services was avoided.
The Services will prioritize the development of Agreements with
assurances because resources to develop Agreements are limited.
Prioritization will help the Services focus on those Agreements that
are expected to provide the greatest conservation benefits.
Issue 8. Many commenters stated that the policy should require that
all
[[Page 32730]]
Candidate Conservation Agreements with assurances include monitoring
provisions.
Response 8. The Services agree that monitoring is necessary to
ensure that the conservation measures specified in an Agreement with
assurances are being implemented and to learn about the effectiveness
of the agreed upon conservation measures. In particular, when adaptive
management principles are included in an Agreement, monitoring is
especially helpful for obtaining the information needed to measure the
effectiveness of the conservation program and detect changes in
conditions. For these reasons, monitoring will be a component of most
Agreements with assurances. For many of these Agreements, monitoring
can be conducted by the Services or the State and, in many cases, may
involve only a brief site inspection and appropriate documentation.
Issue 9. Many commenters believed that Candidate Conservation
Agreements with assurances will wrongly be used to replace recovery
plans or warranted listing determinations or to delay the listing
process.
Response 9. The Services do not intend for Agreements with
assurances to replace recovery plans. In fact, in order to facilitate
the development of Agreements with individual property owners, the
Services may develop a conservation outline, strategy, or plan to
determine the measures needed to address the conservation needs of the
covered species. If the covered species is later listed, the
conservation strategy or plan may form the basis for part or all of a
recovery plan.
The Services also do not intend to use Agreements with assurances
to justify a determination not to list the covered species when listing
is in fact warranted. As described in Response 5, when an Agreement
with assurances is completed after the covered species is proposed for
listing, and when the Services determine, based upon a preliminary
evaluation, that the Agreement could potentially justify withdrawal of
the proposed rule, the comment period for the proposed rule will be
extended or reopened to allow for public comments on the Agreement's
adequacy in removing threats to the species.
However, the Act requires the Services to issue a final
determination within 1 year of issuing a proposed rule to list. The FWS
is working diligently to remove the backlog of listing actions that
accrued following the listing moratorium in 1995 and 1996, and the FWS
expects to soon be able to again make final listing determinations
within the 1-year time frame. The Services will not extend this time
frame in order to allow for the completion and/or consideration of an
Agreement with assurances. The Services believe a preliminary
evaluation of an Agreement is necessary in order to justify
constricting the available time to reach a final determination by
extending or reopening the comment period on a proposed rule.
Issue 10. Several commenters stated that the policy should require
incorporation of avoidance and minimization of take in all Candidate
Conservation Agreements with assurances.
Response 10. The Services believe that avoidance and minimization
of take is an inherent consideration in the development of any
Agreement with assurances. Property owners whose current land, water,
or resource use results in take of proposed or candidate species, or
species likely to become candidates or proposed in the near future, are
a primary focus of this policy. For some Agreements, avoidance and/or
minimization of take may be the primary objective. A property owner
entering into an Agreement with assurances can be assured that, if the
covered species is listed in the future, no additional land, water, or
resource use restrictions will be imposed above and beyond the
conservation measures set forth in the Agreement. After take is
eliminated or reduced, land, water, or resource uses can often provide
significant benefits to the covered species. For example, a property
owner could eliminate or reduce take of a declining grassland bird
species that nests on his property by agreeing to delay mowing until
after the nesting season. The species would benefit from successful
reproduction, and the property owner would benefit from being able to
maintain his current land use even if the species is later listed.
If a property owner exceeds the conservation goal established for
his property as specified in an Agreement with assurances, the property
owner may choose to reduce the level of conservation benefits he/she
has provided to the covered species to a lower level, but one that is
still at or above the conservation goal specified in the Agreement. The
property owner's enhancement of survival permit would authorize
incidental take associated with this reduction of conservation benefits
back to the agreed upon level. Prior to issuing the enhancement of
survival permit, the Services must determine that the conservation goal
for the property can be maintained with the level of take authorized by
the permit. The policy also requires that the Agreement include a
notification requirement, if appropriate, to provide the Services or
State agencies with a reasonable opportunity to rescue and translocate
individuals of a covered species before any authorized take occurs. The
Services believe that these provisions will ensure that any authorized
take will not prevent a property owner from achieving the conservation
goal established for his property and will minimize the amount of
authorized take that occurs.
Issue 11. Several commenters believed that the policy should list
the minimum conditions that must be satisfied before any Candidate
Conservation Agreements with assurances are pursued.
Response 11. The Services agree with this comment, and the final
policy lists the general requirements that all Agreements with
assurances and associated enhancement of survival permits should
satisfy. In addition, FWS's implementing regulations, which are
published in today's Federal Register, also list the requirements that
must be met before the Services will issue an enhancement of survival
permit.
In addition, the FWS's draft Candidate Conservation Handbook
includes a list of conditions under which Candidate Conservation
Agreements would most likely be successful in eliminating threats and
precluding or removing any need to list the covered species. This list
would also apply to Agreements with assurances. The Services believe
that such a list is more appropriately included in implementation
guidance such as the FWS's Candidate Conservation Handbook.
Issue 12. Several commenters stated that the policy should not
apply to candidate and proposed species because determinations have
already been made that these species should be listed, and efforts to
develop Candidate Conservation Agreements with assurances would only
delay or forego the necessary protection that could be afforded by
listing.
Response 12. The Services do not believe that Agreements with
assurances will delay or forego any actions necessary to achieve
conservation of the covered species. In fact, these Agreements will
help to garner the necessary support from non-Federal property owners
in achieving conservation through voluntary implementation of
conservation measures. Additionally, the Services
[[Page 32731]]
believe that, for some candidate and proposed species, it is possible
to complete the Agreements with assurances necessary to remove the need
to list before a final listing determination could be made. These
candidate and proposed species may include (1) species for which
relatively few, non-complex Agreements are necessary, (2) species for
which development of Agreements begins prior to the species becoming a
candidate or proposed species, and (3) candidate species that have a
low listing priority. Therefore, the Services believe that including
candidate and proposed species in this policy is appropriate. However,
for the Services to justify withdrawal of a proposed rule to list, the
parties to all Agreements with assurances for the covered species must
have the authority, funding, and commitment to implement the
Agreements.
As of April 30, 1999, there were 154 FWS candidate species awaiting
preparation of proposed rules and 69 FWS proposed species awaiting
preparation of final rules. Final listing of many of these species, as
well as many of the species that will be added as candidates or
proposed species in the future, will require considerable time. The FWS
believes that initiating early conservation efforts, including the
development of Agreements with assurances, for some of these species
will significantly increase the likelihood that conservation will be
successful.
Issue 13. Several commenters asked how the conservation goal for
each property owner's property can be determined without preparing a
recovery plan.
Response 13. The Services believe it may be appropriate in some
cases to prepare a conservation outline, strategy, or plan for a
species before an Agreement with assurances is developed. In some
cases, a conservation strategy or plan may already have been developed
by the Services, another Federal agency, and/or a State agency. These
strategies or plans may already have identified measures that should be
implemented to conserve the covered species. In these cases,
development of Agreements with assurances can be initiated right away.
Issue 14. Some commenters argued that a property owner could
destroy habitat for candidate or proposed species, and then request a
Candidate Conservation Agreement with assurances based on a lower
starting baseline. Also, some commenters suggested that property owners
may threaten to destroy habitat unless Agreements are written their
way.
Response 14. The Services will not enter into any Agreement with
assurances that does not meet the minimum standards established by this
policy and its implementing regulations. Entering into an Agreement
with assurances is voluntary for the Services and property owners; the
Services will refuse to enter into an Agreement that does not meet the
minimum established standards. Also, because the conservation goal for
a property owner's property is not based solely on the amount of
currently suitable habitat present, destroying habitat will likely only
make it more difficult for the property owner to achieve the
conservation goal for his property. Removing threats and taking actions
consistent with the goal of precluding or removing any need to list
would only be made more arduous by an initial destruction of habitat.
Finally, the Services do not believe that it is credible to suggest
that a property owner who is otherwise interested enough in declining
species conservation to consider entering into an Agreement is likely
to go in and first destroy portions of the species' habitat before
entering into an Agreement.
Issue 15. Some commenters stated that the standard for Candidate
Conservation Agreements with assurances should be to increase the
likelihood that the species will survive rather than to preclude or
remove any need to list.
Response 15. The Services believe that the overall goal for
Agreements with assurances developed under this policy should be to
remove threats to the covered species so as to preclude or remove any
need to list the species. The Services believe that the policy must
incorporate this standard in order to justify the expenditure of
resources to develop and evaluate Agreements with assurances, process
associated enhancement of survival permits, and allow the Services to
provide assurances to the property owner.
Issue 16. Some commenters stated that the Services must conduct
National Environmental Policy Act (NEPA) analyses for all Candidate
Conservation Agreements with assurances and enhancement of survival
permits.
Response 16. The Services believe that implementation of this
policy must comply with NEPA. The Services have determined that most of
these Agreements will be categorically excluded under the Department of
Interior Departmental Manual (DM) NEPA procedures in 516 DM 2, Appendix
1.10 and under NOAA Administrative Series 216-6, Sections 602b.3 and
602c.3. The Services expect that most Agreements with assurances and
associated enhancement of survival permits will result in minor or
negligible effects on the environment including federally listed
species and their habitats. Complex, large-scale, or programmatic
Agreements and their associated permits will require individual NEPA
analysis.
Issue 17. Many commenters were confused by the term ``umbrella
agreements'' in the draft policy.
Response 17. The Services may enter into an ``umbrella'' or
programmatic Agreement with an appropriate State or local agency or
other entity, and through such an Agreement and associated enhancement
of survival permit, specify the assurances and take allowances that
could be further delegated by the State or local agency or other entity
to individual participating non-Federal property owners. In such a
case, the State or local agency or other entity would be the permittee
and would issue Certificates of Inclusion (also sometimes called
Participation Certificates) to non-Federal property owners who satisfy
the terms and conditions of the State or local agency's or other
entity's ``umbrella'' or programmatic Agreement and associated permit.
To avoid confusion in this final policy, the term ``Agreements with
non-Federal property owners'' is used to refer to Agreements between
the Services and individual property owners as well as ``umbrella'' or
programmatic Agreements with State or local agencies or other entities
through which assurances are further delegated to individual
participating non-Federal property owners.
Issue 18. The statement ``These assurances will only be provided to
the participating property owners or State or local land management
agencies but not to State regulatory agencies'' confused many
commenters who recognized that many State or local land management
agencies also have regulatory responsibilities.
Response 18. The Services agree that this statement was confusing
and have clarified it in the final policy. In making the statement, the
Services overlooked the dual role of many State and local land
management agencies. The Services intended to emphasize that only non-
Federal property owners, whether they are State or local agencies,
private individuals, Tribes, or other non-Federal entities, can receive
assurances. However, as discussed previously, the Services can enter
into an ``umbrella'' or programmatic Agreement with a State or local
agency, including a State or local regulatory agency if appropriate, or
other entity, and through such an Agreement and its
[[Page 32732]]
associated enhancement of survival permit, specify the assurances and
take allowances that can be delegated by the State or local agency or
other entity to individual participating non-Federal property owners
through Certificates of Inclusion, Participation Certificates, or other
similar vehicles.
Issue 19. Many commenters questioned the meaning of, or were
confused by, the phrase ``similarly situated property owners,'' which
was used in describing the standard to which every Candidate
Conservation Agreement with assurances will be held. Some commenters
asked what the standard would be if there are no other similarly
situated property owners within the range of the species. Some
commenters asked what non-similarly situated property owners would be
required to do. In addition, some commenters asked what property owners
outside the current range of the species would be required to do if
expansion of the current range of the species is necessary to preclude
or remove any need to list.
Response 19. The Services agree that the draft policy did not
clearly explain the standard that all Agreements with assurances must
meet and have revised the description of the standard in the final
policy as follows:
``The Services must determine that the benefits of the conservation
measures implemented by a property owner under a Candidate Conservation
Agreement with assurances, when combined with those benefits that would
be achieved if it is assumed that conservation measures were also to be
implemented on other necessary properties, would preclude or remove any
need to list the covered species. Other necessary properties are other
properties on which conservation measures would have to be implemented
in order to preclude or remove any need to list the covered species.
The kinds of conservation measures specified in an Agreement with
assurances will depend on the types, amounts, and conditions of, and
need for, the habitats existing on the property and on other biological
factors. Different kinds of conservation measures may benefit different
life stages or serve to fulfill different life history requirements of
the covered species. The amount of benefit provided by an Agreement
with assurances will depend on many factors, particularly the size of
the area on which conservation measures are implemented and the degree
of conservation benefit possible (e.g., through habitat restoration or
reduction of take). For example, an Agreement with assurances for a
property with a small area of severely degraded habitat could be
designed to achieve greater benefits than one for a property with a
large amount of slightly degraded habitat.''
The Services believe this description of the standard more clearly
explains the contribution an individual property owner entering into an
Agreement with assurances would need to make toward precluding or
removing any need to list the covered species. This description
addresses the fact that properties differ and that, consequently,
different conservation measures could be specified for different
properties. In addition, this description takes into account the fact
that the Services may need to expand the species' current range in
order to preclude or remove any need to list.
Issue 20. Several commenters asked for clarification of the phrase
``species which will likely become candidates in the near future.''
Response 20. The objective of this policy is to provide incentives
to encourage non-Federal property owners to implement early
conservation for declining species with the goal of precluding or
removing any need to list. The Services did not want to exclude those
species that are declining and/or are becoming subject to increasing
threats and may soon be considered for candidate status. Including
these species is particularly important considering that the rates of
decline can sometimes increase abruptly, that the development of a
Candidate Conservation Agreement with assurances might take longer than
expected, and that conservation options may be more numerous the
earlier a species is addressed. Because the circumstances surrounding
each species are unique, the Services have chosen not to adopt a strict
regulatory definition of the term ``species that will likely become
candidates in the near future.'' Instead, the Services will review
species that are not candidates or proposed species on a case-by-case
basis when determining whether they may be covered by an Agreement with
assurances.
Issue 21. Several commenters were confused by the phrase ``above
those levels agreed upon and specified in the Agreement,'' which was
used in describing the assurances provided through Candidate
Conservation Agreements with assurances and associated enhancement of
survival permits.
Response 21. The Services agree that this phrase is confusing and
have clarified the meaning in the final policy. The draft policy stated
that ``* * * 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 described in the
Agreement.'' The Services did not intend this statement to mean that
the amount of take authorized by an enhancement of survival permit
could exceed the amount specified in the associated Agreement or could
allow for more habitat modification than specified in the Agreement.
Rather, the statement was an attempt to explain that the enhancement of
survival permit accompanying an Agreement with assurances would
authorize a property owner who exceeds the conservation goal specified
in the Agreement (e.g., through additional habitat improvement or the
implementation of conservation measures that are more effective or
beneficial than anticipated and described in the Agreement) to take the
additional or enhanced number of individuals of the species that is
consistent with the conservation goal specified in the Agreement. That
is, a property owner can still avoid the imposition of additional
restrictions above those agreed to in the Agreement where the property
owner surpassed the conservation goals established under the Agreement.
Issue 22. Some commenters were confused by Part 3A of the draft
policy that stated that a Candidate Conservation Agreement with
assurances will identify habitat characteristics that support use by
the covered species on lands or waters under the property owner's
control or that support populations of the covered species in waters
that may not be under the property owner's control. These commenters
questioned the meaning of the phrase ``waters that may not be under the
property owner's control.''
Response 22. In using this phrase, the Services intended to address
the fact that, in some cases, characteristics of a particular property
owner's property may sustain (or land, water, or resource uses on that
property may affect) individuals of a species located on other lands or
waters adjacent to or some distance away from the property owner's
property. For example, riparian habitat enhancement measures upstream
may benefit candidate species that are downstream from the
participating property owner's property. An Agreement with assurances
can describe this relationship and can include conservation measures to
improve the characteristics of the property that help sustain (or to
reduce
[[Page 32733]]
the impacts of the land, water, or resource uses that may affect) the
individuals of the species found off the property owner's property.
Issue 23. Several commenters asked if there was any difference
between the meanings of the terms ``conservation actions,''
``management actions,'' ``conservation activities,'' ``management
activities,'' and ``conservation management activities.''
Response 23. The Services did not intend for these terms to have
different meanings and, in the final policy, have used a single term,
``conservation measures,'' in place of the terms listed above. The term
``conservation measures'' clearly describes the range of practices
which could be included in a Candidate Conservation Agreement with
assurances. Not all conservation measures involve ``management'' that
is continued into the future; conservation measures may include removal
of a hazard to the species, construction of a habitat feature (such as
placement of boulders in a stream to create fish resting habitat), or
other practices.
Issue 24. Several commenters were confused by the sentence in the
``Definitions'' section of the draft policy under ``Covered species''
that read ``Those species covered in the Agreement must be treated as
if they were listed.''
Response 24. The Services agree that this sentence may have caused
some confusion and the sentence has been deleted from the final policy.
The Services have also clarified the definition in the final policy.
Issue 25. Some commenters questioned why the Services used the term
``incidental take'' to describe take authorized by an enhancement of
survival permit under section 10(a)(1)(A) of the Act when ``incidental
take'' normally applies to take authorized by an Incidental Take permit
under section 10(a)(1)(B).
Response 25. The Services have decided to use the term ``incidental
take'' to refer to the take authorized by an enhancement of survival
permit associated with a Candidate Conservation Agreement with
assurances because this ``take'' is incidental to enhancing the
survival of the species through compliance with the Agreement.
Similarly, take resulting from research authorized by an enhancement of
survival permit under section 10(a)(1)(A) is ``incidental take'' in
that it is typically a consequence of and not the purpose of the
research. The Services believe using the term ``incidental take'' in
this policy will be less confusing than coining a new term to
differentiate take authorized under section 10(a)(1)(A) from that
authorized under section 10(a)(1)(B).
Issue 26. Some commenters questioned the use of the term ``net
benefit'' in the draft policy.
Response 26. The term ``net benefit'' was erroneously included in
the draft policy and has been eliminated in the final policy. ``Net
benefit'' is a concept more appropriately used in ``Safe Harbor''
Agreements for listed species conservation.
Revisions to the Proposed Policy
The following represents a summary of the revisions made to the
proposed Candidate Conservation Agreements with Assurances policy
following consideration of public comments.
(1) The final policy describes the mechanism for property owners to
terminate their voluntary Candidate Conservation Agreements with
assurances before the expiration date.
(2) Specific public review periods for proposed Candidate
Conservation Agreements with assurances and their associated proposed
enhancement of survival permits have been established in the final
policy and implementing regulations.
(3) The final policy includes general guidelines for the
development of monitoring provisions of Candidate Conservation
Agreements with assurances.
(4) Several definitions and terms have been clarified in the final
policy.
Final Candidate Conservation Agreements With Assurances Policy
Part 1. What Is the Purpose of the Policy?
This policy, is intended to facilitate the conservation of proposed
and candidate species, and species likely to become candidates or
proposed in the near future, by giving non-Federal citizens, States,
local governments, Tribes, businesses, organizations, and other non-
Federal property owners incentives to implement conservation measures
for declining species by providing regulatory certainty with regard to
land, water, or resource use restrictions that might otherwise apply
should the species later become listed as threatened or endangered
under the Act. Under the policy, non-Federal property owners who commit
in a Candidate Conservation Agreement with assurances to implement
mutually agreed upon conservation measures for a proposed or candidate
species, or a species likely to become a candidate or proposed in the
near future, will receive assurances from the Services that additional
conservation measures above and beyond those contained in the Agreement
will not be required, and that additional land, water, or resource use
restrictions will not be imposed upon them should the species become
listed in the future.
In determining whether to enter into a Candidate Conservation
Agreement with assurances, the Services will consider the extent to
which the Agreement reduces threats to proposed and candidate species
and species likely to become candidates or proposed in the near future
so as to preclude or remove any need to list these species as
threatened or endangered under the Act. While the Services realize that
the actions of a single property owner usually will not preclude or
remove any need to list a species, they also realize the collective
effect of the actions of many property owners may be to preclude or
remove any need to list. Accordingly, the Services will enter into an
Agreement with assurances when they determine that the benefits of the
conservation measures implemented by a property owner under a Candidate
Conservation Agreement with assurances, when combined with those
benefits that would be achieved if it is assumed that conservation
measures were also to be implemented on other necessary properties,
would preclude or remove any need to list the covered species.
While some property owners are willing to manage their lands to
benefit proposed and candidate species, or species likely to become
candidates or proposed in the near future, most desire some degree of
regulatory certainty and assurances with regard to possible future
land, water, or resource use restrictions that may be imposed if the
species is listed in the future. The Services will provide regulatory
certainty to a non-Federal property owner who enters into a Candidate
Conservation Agreement with assurances by authorizing, through issuance
of an enhancement of survival permit under section 10(a)(1)(A) of the
Act, a specified level of incidental take of the species covered in the
Agreement. Incidental take authorization benefits non-Federal property
owners in two ways. First, incidental take authorization provides
assurances to property owners that any extra, either intentional or
unintentional, benefits they achieve for the species beyond those
agreed upon will not result in additional land, water, or resource use
restrictions that would otherwise be imposed should the species become
listed in the future. Second, in the event the species is listed in the
future, incidental take authorization enables
[[Page 32734]]
property owners to continue current land uses that have traditionally
caused take, provided take is at or reduced to a level consistent with
the overall goal of precluding or removing any need to list the
species.
Candidate Conservation Agreements with assurances will be developed
in close coordination and cooperation with the appropriate State fish
and wildlife agencies and other affected State agencies and Tribes, as
appropriate. Close coordination with State fish and wildlife agencies
is particularly important given their primary responsibilities and
authorities for the management of unlisted resident species. Agreements
with assurances are to be consistent with applicable State laws and
regulations governing the management of these species.
The Services must determine that the benefits of the conservation
measures implemented by a property owner under a Candidate Conservation
Agreement with assurances, when combined with those benefits that would
be achieved if it assumed that conservation measures were also to be
implemented on other necessary properties, would preclude or remove any
need to list the covered species. Pursuant to section 7 of the Act, the
Services must also ensure that the conservation measures included in
any Agreement with assurances do not jeopardize any listed or proposed
species and do not destroy or adversely modify any proposed or
designated critical habitats that may occur in the area.
Some non-Federal property owners may not have the necessary
resources or expertise to develop Candidate Conservation Agreements
with assurances. Therefore, the Services are committed to providing, to
the maximum extent practicable given available resources, the necessary
technical assistance to develop Agreements with assurances and prepare
enhancement of survival permit applications. Furthermore, the Services
may assist or train property owners to implement conservation measures.
Development of a biologically sound Agreement and enhancement of
survival permit application are intricately linked. The Services will
process the participating non-Federal property owner's enhancement of
survival permit application following the procedures described in 50
CFR Parts 17.22(d)(1) and 17.32(d)(1) or 50 CFR Part 222. All terms and
conditions of the enhancement of survival permit must be consistent
with the conservation measures included in the associated Agreement
with assurances.
Part 2. What Definitions Apply to this Policy?
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 other Federal or State
agencies, local governments, Tribes, businesses, organizations, or non-
Federal citizens, that identifies specific conservation measures that
the participants will voluntarily undertake to conserve the covered
species.
``Candidate Conservation Agreements with assurances'' means a
Candidate Conservation Agreement with a non-Federal property owner that
meets the standards described in this policy and provides the non-
Federal property owner with the assurances described in this policy.
``Candidate Conservation Assurances'' are assurances provided to a
non-Federal property owner in a Candidate Conservation Agreement with
assurances that conservation measures and land, water, or resource use
restrictions in addition to the measures and restrictions described in
the Agreement will not be imposed should the covered species become
listed in the future. Candidate Conservation Assurances will be
authorized by an enhancement of survival permit. Such assurances may
apply to a whole parcel of land, or a portion, as identified in the
Agreement.
``Candidate species'' are defined differently by the Services. FWS
defines candidate species as species for which FWS has sufficient
information on file relative to status and threats to support issuance
of proposed listing rules. NMFS defines candidate species as species
for which NMFS has information indicating that listing may be warranted
but for which sufficient information to support actual proposed listing
rules may be lacking. The term ``candidate species'' used in this
policy refers to those species designated as candidates by either of
the Services.
``Conservation measures'' are actions that a non-Federal property
owner voluntarily agrees to undertake when entering into a Candidate
Conservation Agreement with assurances.
``Covered species'' means those species that are the subject of a
Candidate Conservation Agreement with assurances and associated
enhancement of survival permit. Covered species are limited to species
that are candidates or proposed for listing and species that are likely
to become candidates or proposed in the near future.
``Enhancement of survival permit'' means a permit issued under
section 10(a)(1)(A) of the Act that, as related to this policy,
authorizes the permittee to incidentally take species covered in a
Candidate Conservation Agreement with assurances.
``Non-Federal property owner'' includes, but is not limited to,
States, local governments, Tribes, businesses, organizations, and
private individuals, and includes owners of land as well as owners of
water or other natural resources.
``Other necessary properties'' are properties in addition to the
property that is the subject of a Candidate Conservation Agreement with
assurances on which conservation measures would have to be implemented
in order to preclude or remove any need to list the covered species.
``Proposed species'' is a species for which the Services have
published a proposed rule to list as threatened or endangered under
section 4 of the Act.
Part 3. What Are Candidate Conservation Agreements With Assurances?
Candidate Conservation Agreements with assurances will identify or
include:
A. The population levels (if available or determinable) of the
covered species existing at the time the parties negotiate the
Agreement; the existing habitat characteristics that sustain any
current, permanent, or seasonal use by the covered species on lands or
waters owned by the participating non-Federal property owner; and/or
the existing characteristics of the property owner's lands or waters
included in the Agreement that support populations of covered species
on lands or waters not on the participating property owner's property;
B. The conservation measures the participating non-Federal property
owner is willing to undertake to conserve the species included in the
Agreement;
C. The benefits expected to result from the conservation measures
described in B above (e.g., increase in population numbers;
enhancement, restoration, or preservation of habitat; removal of
threat) and the conditions that the participating non-Federal property
owner agrees to maintain. The Services must determine that the benefits
of the conservation measures implemented by a property owner under a
Candidate Conservation Agreement with assurances, when combined with
those benefits that would be achieved if it is assumed that
conservation measures were also to be implemented on other necessary
properties, would
[[Page 32735]]
preclude or remove any need to list the covered species;
D. Assurances provided by the Services that no additional
conservation measures will be required and no additional land, water,
or resource use restrictions will be imposed beyond those described in
B above should the covered species be listed in the future. Assurances
related to take of the covered species will be authorized by the
Services through a section 10(a)(1)(A) enhancement of survival permit
(see Part 5);
E. A monitoring provision that may include measuring and reporting
progress in implementation of the conservation measures described in B
above and changes in habitat conditions and the species' status
resulting from these measures; and,
F. A notification requirement to provide the Services or
appropriate State agencies with a reasonable opportunity to rescue
individuals of the covered species before any authorized incidental
take occurs.
Part 4. What Are the Benefits to the Species?
Before entering into a Candidate Conservation Agreement with
assurances, the Services must make a written finding that the benefits
of the conservation measures implemented by a property owner under a
Candidate Conservation Agreement with assurances, when combined with
those benefits that would be achieved if it is assumed that
conservation measures were also to be implemented on other necessary
properties, would preclude or remove any need to list the covered
species. If the Services and the participating property owner cannot
agree to an adequate set of conservation measures that satisfy this
requirement, the Services will not enter into the Agreement. Expected
benefits of the conservation measures could include, but are not
limited to: restoration, enhancement, or preservation of habitat;
maintenance or increase of population numbers; and reduction or
elimination of incidental take.
Part 5. What Are Assurances to Property Owners?
In a Candidate Conservation Agreement with assurances, the Services
will provide that if any species covered by the Agreement is listed,
and the Agreement has been implemented in good faith by the
participating non-Federal property owner, the Services will not require
additional conservation measures nor impose additional land, water, or
resource use restrictions beyond those the property owner voluntarily
committed to under the terms of the original Agreement. Assurances
involving incidental take will be authorized through issuance of a
section 10(a)(1)(A) enhancement of survival permit, which will allow
the property owner to take individuals of the covered species so long
as the level of take is consistent with those levels agreed upon and
identified in the Agreement.
The Services will issue an enhancement of survival permit at the
time of entering into the Agreement with assurances. This permit will
have a delayed effective date tied to the date of any future listing of
the covered species. The Services believe that an enhancement of
survival permit is particularly well suited for Candidate Conservation
Agreements with assurances because the main purpose of such Agreements
is to enhance the survival of declining species.
The Services are prepared as a last resort to revoke a permit
implementing a Candidate Conservation Agreement with assurances where
continuation of the permitted activity would be likely to result in
jeopardy to a species covered by the permit. Prior to taking such a
step, however, the Services would first have to exercise all possible
means to remedy such a situation.
Part 6. How Do the Services Comply With National Environmental Policy
Act?
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 use
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 either by preparing an Environmental
Assessment (EA) or Environmental Impact Statement (EIS) or by showing
that the proposed action is categorically excluded from individual NEPA
analysis.
The Services will review each Candidate Conservation Agreement with
assurances and associated enhancement of survival permit application
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 the Services determine that the
Agreement and permit will likely result in any of the above effects,
preparation of an EA or EIS will be required. 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.
The Services expect that most Candidate Conservation Agreements
with assurances and associated enhancement of survival permits will
result in minor or negligible effects on the environment and will be
categorically excluded from individual NEPA analysis. When the impacts
to the environment are expected to be more than minor, individual NEPA
analysis will be required. Complex, large-scale, or programmatic
Agreements and their associated permits will typically be subject to
individual NEPA analysis.
Part 7. Will There Be Public Review?
Public participation in the development of a proposed Candidate
Conservation Agreement with assurances will only be provided when
agreed to by the participating property owner. However, the Services
will make every proposed Agreement available for public review and
comment as part of the public evaluation process that is statutorily
required for issuance of the enhancement of survival permit associated
with the Agreement. This comment period will generally be 30 days but
may be longer for very large or programmatic Agreements. The public
will also be given other opportunities to review Agreements in certain
cases. For example, when the Services receive an Agreement covering a
proposed species, and when the Services determine, based upon a
preliminary evaluation, that the Agreement could potentially justify
withdrawal of the proposed rule, the comment period for the proposed
rule will be extended or reopened to allow for public comments on the
Agreement's adequacy in removing or reducing threats to the species.
However, the Act requires the Services to issue a final determination
within 1 year of issuing a proposed rule to list; the Services will not
extend this time frame in order to allow for the completion and/or
consideration of an Agreement with assurances. Therefore, the Services
may not be able to consider in their final determination Agreements
that are not received within a reasonable period of time after issuance
of the proposed rule.
[[Page 32736]]
Part 8. Do Property Owners Retain Their Discretion?
Nothing in this policy prevents a participating property owner from
implementing conservation measures not described in the Agreement,
provided such measures are consistent with the conservation measures
and conservation goal described in the Agreement. The Services will
provide technical advice, to the maximum extent practicable, to the
property owner when requested. Additionally, a participating property
owner, with good cause, can terminate the Agreement prior to its
expiration date, even if the terms and conditions of the Agreement have
not been realized. However, the enhancement of survival permit would
also be terminated at the same time.
Part 9. What Is the Discretion of All Parties?
Nothing in this policy compels any party to enter a Candidate
Conservation Agreement with assurances at any time. Entering an
Agreement is voluntary for non-Federal property owners and the
Services. Unless specifically noted, an Agreement does not otherwise
create or waive any legal rights of any party to the Agreement.
Part 10. Can Agreements Be Transferred?
If a property owner who is a party to a Candidate Conservation
Agreement with assurances transfers ownership of the enrolled property,
the Services will regard the new property owner as having the same
rights and obligations 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 terms and conditions
of the original Agreement. If the new property owner does not become a
party to the Agreement, the new owner would neither incur
responsibilities under the Agreement nor receive any assurances
relative to section 9 restrictions resulting from listing of the
covered species.
An 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
the opportunity to contact the new property owner to explain the prior
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 Agreement, the Services will honor
the terms and conditions of the original Agreement.
Part 11. Is Monitoring Required?
The Services will ensure that necessary monitoring provisions are
included in Candidate Conservation Agreements with assurances and
associated enhancement of survival permits. Monitoring is necessary to
ensure that the conservation measures specified in an Agreement and
permit are being implemented and to learn about the effectiveness of
the agreed upon conservation measures. In particular, when adaptive
management principles are included in an Agreement, monitoring is
especially helpful for obtaining the information needed to measure the
effectiveness of the conservation program and detect changes in
conditions. However, the level of effort and expense required for
monitoring can vary substantially among Agreements depending on the
circumstances. For many Agreements, monitoring can be conducted by the
Services or a State agency and may involve only a brief site inspection
and appropriate documentation.
Large-scale or complex Candidate Conservation Agreements with
assurances may require more in-depth and comprehensive monitoring.
Monitoring programs must be agreed upon and included in the Agreement
prior to public review and comment on the Agreement. The Services are
committed to providing as much technical assistance as possible in the
development of acceptable monitoring programs. Additionally, these
monitoring programs will provide valuable information that the Services
can use to evaluate program implementation and success.
Part 12. How Are Cooperation and Coordination With the States and
Tribes Described in the Policy?
Coordination between the Services, the appropriate State fish and
wildlife agencies, affected Tribal governments, and property owners is
important to the successful development and implementation of Candidate
Conservation Agreements. The Services will closely coordinate and
consult with the affected State fish and wildlife agency and any
affected Tribal government that has a treaty right to any fish or
wildlife resources covered by an Agreement.
Dated: March 22, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
Dated: June 10, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-15257 Filed 6-11-99; 5:08 pm]
BILLING CODE 4310-55-P
