[Federal Register Volume 60, Number 139 (Thursday, July 20, 1995)]
[Proposed Rules]
[Pages 37419-37423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17856]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD24
Endangered and Threatened Wildlife and Plants; Proposed Rule
Exempting Certain Small Landowners and Low-Impact Activities From
Endangered Species Act Requirements for Threatened Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to amend
the general regulations for threatened species (50 CFR 17.31) under the
Endangered Species Act of 1973 by establishing a new exemption for
certain small landowners and low impact activities that are presumed to
individually or cumulatively have little or no lasting effect on the
likelihood of survival and recovery of threatened species of fish and
wildlife, and, therefore, have only minor or negligible adverse
effects. This exemption would be applied to all threatened species of
fish and wildlife listed in the future unless the Service concluded for
a given species that the exemption was inappropriate because its
individual or cumulative biological effects would not be insignificant
for the species as a whole. In such a case, the Fish and Wildlife
Service would issue a ``special rule'' for the species that would
contain either no small landowner or low-impact activities exemptions
or some reduced variation of those exemptions. This proposed rule also
seeks to establish an additional general exemption for activities that
are conducted in accordance with a State-authorized or -developed
habitat conservation strategy for a threatened species which the
Service has found to comprehensively address the threats to the species
and promote the species' survival and recovery.
DATES: Comments on this proposal must be received by September 18,
1995, in order to be considered in the final decision on this proposal.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Chief, Division of Endangered Species, U.S. Fish and
Wildlife Service, 1849 C Street NW., Washington, DC 20240. Comments and
materials received will be available for public inspection, by
appointment, during normal business hours in Room 452, 4401 North
Fairfax Drive, Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, at the above address (703/358-2171; facsimile 703/
358-1735).
SUPPLEMENTARY INFORMATION:
Background
On September 26, 1975, the U.S. Fish and Wildlife Service (Service)
adopted general regulations in 50 CFR Part 17 governing the way
endangered and threatened species would be regulated under the
Endangered Species Act of 1973, as amended (Act). Section 9 of the Act
prohibits by statute the ``take'' of federally listed endangered
species. However, Congress deferred to Secretarial discretion the issue
of how ``threatened'' species would be treated with respect to the
section 9 take prohibition. In the 1975 regulations (50 CFR 17.31), the
Service generally adopted for threatened species of fish and wildlife a
blanket set of prohibitions identical to the prohibitions the Act
itself applied to
[[Page 37420]]
endangered species. Under section 17.31, if the Service concluded for a
given threatened species that the general prohibitions were
inappropriate or inadequate, the Service committed to issuing a
``special rule'' under section 4(d) of the Act containing different
prohibitions and exceptions tailor made for the threatened species in
question. However, the Act does not make this option available to
species listed as endangered.
Underlying this approach taken in 1975 was the general assumption
that the majority of threatened species of fish and wildlife would
require the same level of protection against takings afforded to
endangered species, and that only a small number of threatened species
would require specialized regulatory attention. For the anticipated
small handful of threatened listings where the ``one size fits all''
approach to takings prohibitions would not work, additional time and
effort would be spent developing a tailor made special rule. This
approach with regard to the taking of threatened fish and wildlife was
not extended to the protection of threatened plants because as a
general matter the taking of plants is not a prohibited activity on
private lands.
Currently, a total of 111 fish and wildlife species endemic to the
U.S. are listed as threatened. An additional six fish and wildlife
species are proposed for listing as threatened. Thus, during the past
twenty years of implementing the Act, the Service has gained
significant experience and insight into the management and conservation
of threatened species. The Service has found in some cases that
existing prohibitions have been unnecessarily restrictive or too
inflexible to encourage creative conservation opportunities for
threatened species. Further, the Service has found that these
prohibitions may ``over-regulate'' certain activities which, on the
whole, are otherwise insignificant for some species, and in some cases
may actually generate disincentives for private landowner support for
threatened species conservation. Both of these situations have led to
considerable anxiety on the part of private landowners, particularly
smaller landowners who believe that they have little to contribute to
threatened species conservation.
With regard to small landowners and small-scale or low-impact
activities, the Service now believes that it is no longer necessary,
appropriate, or advisable to maintain a regulatory presumption that
isolated takings associated with such activities must be strictly
regulated or prohibited for the conservation of all threatened species.
For some threatened species, the opposite is true.
For example, in the case of occupied household dwellings used
solely for residential purposes, the Service has found that there are
few routine yard maintenance or construction activities which are
likely to adversely affect threatened species in any meaningful way.
Moreover, the relative habitat value of residential property is very
limited in most cases. Small-scale land use disturbance activities are
another category of events which are likely to generate little or no
lasting effect on the likelihood of the survival and recovery of a
number of threatened species, especially species which are wide
ranging. The Service believes that for many threatened species, a
variety of small-scale activities might technically result in an
isolated incidental ``taking'' of a species without individually or
cumulatively having a significant adverse effect upon its long-term
conservation.
In light of the above considerations, the Service now proposes to
amend 50 CFR 17.31 by creating a new set of presumptions which would
exempt certain small landowners and categories of small-scale or
negligible-impact activities from possible incidental take liability
for threatened species. Upon final adoption of this amendment, the
Service would automatically exempt the delineated categories of
activities from the incidental taking restrictions of future threatened
species listings, unless for a given proposed listing, the Service
concluded that the individual or cumulative adverse effects were likely
to be significant. In such a case, the Service would issue a special
rule which would modify the proposed exemptions as necessary and
otherwise assure that any individual or cumulative effects would be
insignificant.
The Service anticipates three different scenarios for implementing
the new small landowner and low-impact exemption regulation, depending
on where a species is in the listing process. The three situations
would involve species that are listed as threatened at some time in the
future after the possible adoption of these new exemptions; species
that are proposed for listing as threatened and are presently in the
listing process; and species that are already listed as threatened. In
the first situation, the new exemptions in 50 CFR 17.31, if ultimately
adopted, would automatically apply to any species listed as threatened
in the future except where the adverse effects of the exemption would
be significant.
The second situation involves the Service's interim application of
the proposed exemptions, pending final adoption of an amendment to 50
CFR 17.31. During this interim period, the Service will consider the
application of the exemptions on a case-by-case basis for currently
proposed threatened species listings, and will issue a proposed special
rule to adopt those exemptions for any species where it is found to be
warranted. This could result in two opposite uses of special rules for
threatened species with regard to small landowner and low-impact
exemptions: once the new exemptions are finalized and formally inserted
into 50 CFR 17.31, a special rule would be used to ``opt out of''
(i.e., not to adopt) the new exemptions where necessary. Pending the
final amendment of 50 CFR 17.31, however, a special rule would be
needed to ``opt in to'' (i.e., to adopt) the proposed exemptions for a
new threatened species listing. In either situation, the special rule
would fully explain the circumstances and the rationale for its
treatment of small landowner and small impact activities as they relate
to incidental take prohibitions for the affected threatened species.
The third situation involves the 111 fish and wildlife species
currently on the threatened species list. These species were placed
previously on the list without specific consideration of a small
landowner or low-impact exemption. The Service intends to complete
within 90 days a preliminary assessment of all currently listed
threatened species of fish and wildlife to assess the extent to which
the new proposed exemptions could be applied. In those instances where
such application is warranted, the Service would propose subsequent
special rules to address currently-listed threatened species.
Section By Section Analysis
Subsection (a) General.--The current language of subsection (a)
states that with three expressly noted exceptions, all of the
prohibitions applicable to endangered species are made applicable to
threatened species of fish and wildlife. The proposed rule would make a
technical addition to the list of exceptions by adding a reference to
``subsection (d)'' which would contain the new proposed exemptions for
small landowners and small-scale and negligible impacts. The net effect
of this change would be to establish a new presumption for future
threatened species listings that the regulatory prohibition against
takings would not apply to activities conducted in
[[Page 37421]]
accordance with the new exemptions in subsection (d). The proposed rule
also adds the title, ``General,'' to this subsection.
Subsection (b) Cooperative agreements. This subsection does not
propose any changes from the existing text in 50 CFR 17.31(b) except
for the addition of the title, ``Cooperative Agreements.''
Subsection (c) Special rules. This subsection proposes to make only
technical changes to the current text of 50 CFR 17.31(c) to clarify
that a special rule may apply to only portions of a species range. If a
special rule applies to only part of the species range, the
prohibitions in subsections (a), (b), and (d) would apply in portions
of the range not covered by the special rule. The subsection would also
retain the provisions of the current text of 17.31(c) which indicates
that where a special rule applies, the terms of the special rule would
displace any of the general provisions of 50 CFR 17.31 (a), (b), and
(d). Thus, if the Service concluded that it was biologically
inappropriate to apply to a given threatened species any of the new
exemptions established in subsection (d) for small landowners or low
impacts, the Service would issue a special rule for that species that
would eliminate or amend the language in subsection (d) as necessary to
protect that particular species. All or part of the proposed exemptions
could be amended in such cases. The proposed rule also adds the title,
``Special rules,'' to this subsection.
Subsection (d) Landowner exemptions.--A new subsection (d) states
that any person may take a threatened species in the course of an
otherwise lawful activity conducted by the landowner or with the
landowner's permission in three situations involving the use of private
property. The three exceptions apply to single household dwellings on 5
acres of land or less, low-impact activities that result in the
cumulative disturbance of less than 5 acres of land, and activities
that otherwise are found by the Service to be negligible in their
effects upon a threatened species.
These exemptions or exceptions would only be applicable to
``otherwise lawful activities''. This phrase would limit their
application to land use activities which were conducted in accordance
with all Federal, state and local land use or environmental laws (e.g.
water quality standards, pesticide use, zoning).
Paragraph (d)(1) proposes an exemption for activities which take
place around a private residence on a parcel of land of 5 acres or
less. In particular, the exemption would apply to those activities
conducted on a contiguous parcel of land of 5 acres or less which was
occupied by a single household structure or dwelling. An additional
requirement would be that the parcel of land surrounding the dwelling
be used principally for residential, noncommercial purposes. The
limitation on noncommercial activities is intended to be applied to the
use of the land surrounding the dwelling, as opposed to limited
commercial activities within the residential dwelling itself. Thus, the
proposed exemption would still apply in the situation where a small
business was run out of a home or one or more rooms were rented out to
someone outside of the immediate family of the landowner. It is the
intention of the Service that this exemption would run with the land
and the residential property, and transfer from owner to owner.
As previously noted, the Service believes that this exemption is
justified because residential property generally has limited habitat
value for listed species. Moreover, the types of activities associated
with non-commercial dwellings such as maintenance, enhancement, or the
general use and enjoyment of such tracts and their associated
facilities often will often have no lasting effect upon the likelihood
of the survival and recovery of threatened species.
Paragraph (d)(2) would propose an exemption for activities that
cumulatively disturb over time no more than 5 total contiguous acres
within a given parcel of land. Like the above exemption for residential
households, this exemption would run with the land from owner to owner
until the area of disturbance cumulatively totaled 5 contiguous acres.
This exemption would apply regardless of whether the disturbance
activities were commercial or noncommercial in nature.
This provision should provide considerable relief to small
landowners and small businesses, since it would allow for the clearing
and development of a parcel of land, so long as the cumulative
disturbance over time was limited to 5 total contiguous acres or less.
This would allow a property owner, for example, to construct a small to
mid-sized business establishment or to utilize part of a residential
property for income-producing purposes. While a cumulative cap of 5
acres is proposed for the maximum area of disturbance over time, it is
not intended to limit the exemption only to people who own less than 5
acres of land in total; a person could own a larger piece of property
so long as the total area of disturbance under the exemption was no
larger than 5 acres.
It should be noted that these first two exemptions for residential
property and 5-acre disturbance are intended to be mutually exclusive
and not cumulative in their application. That is, a given landowner can
take advantage of either the 5-acre residential property exemption or
the 5-acre disturbance exemption, but cannot take both for a combined
exemption total of 10 acres. Each property owner would also be limited
to applying the exemptions to one contiguous parcel of land as opposed
to separate 5-acre exemptions for each parcel of land that they may
own.
It should also be noted that while the Service has chosen 5 acres
as the maximum acreage for disturbance under the general exemption
proposed for 50 CFR 17.31, the Service will consider proposing land use
exemptions greater than 5 acres on a species-by-species basis where
such acreage is biologically defensible. Thus, for example, the Service
proposed an 80-acre small landowner exemption for the northern spotted
owl on February 17, 1995. The Service believed that 80 acres was
warranted in that particular case because of the adoption of a
comprehensive Federal Forest Plan to conserve the owl.
Paragraph (d)(3) sets out a third exemption for all other
activities identified by the Service as having negligible adverse
effects upon a particular threatened species. In order to provide
maximum guidance and assurance to the public, the Service will attempt
to identify activities in future listings which, while technically
qualifying as a possible take of a threatened species, are deemed to
have no lasting effect on the long-term survival and recovery of the
species. Land use activities identified under this paragraph will fall
into categories which for one reason or another did not fit into the
previous two exemptions but were negligible in their impacts
nonetheless. Negligible effects activities would be identified on a
case-by-case basis either in the final rulemaking listing a threatened
species or in a subsequent general notice published in the Federal
Register. The Service would also be willing to work with individual
landowners on a voluntary basis to assess whether or not a particular
proposed activity would have only negligible effects, thereby
qualifying for this exemption as well. Whether effects are deemed to be
negligible would be determined by their impact on the
[[Page 37422]]
species as a whole as opposed to any one individual specimen.
Paragraph (d)(4) sets out a fourth exemption which is designed to
provide an incentive to encourage the development of State-authorized
or -developed comprehensive habitat conservation plans for threatened
species. Premised upon the State of California's Natural Community
Conservation Planning Program and the Service's special rule for the
California gnatcatcher, this exemption would be triggered by a finding
published by the Fish and Wildlife Service in the Federal Register that
a given State has developed an adequate habitat conservation plan for a
threatened species that comprehensively addresses the threats to the
species within that State and promotes its survival and recovery. Any
subsequent land use activity within that State which was in accordance
with the approved State habitat plan, would be exempted from any
further Federal taking prohibitions for threatened species under the
Endangered Species Act. Thus, by taking the initiative and developing a
State-authorized or -developed conservation plan, a State could
eliminate a separate Federal set of regulatory guidelines which
landowners would otherwise have to comply with. Further, this provision
could apply to conservation plans developed at the regional or county
level so long as such plans comprehensively address the threats to a
species throughout its range or the primary portions of its range and
are authorized by a State conservation program.
Paragraph (d)(5) contains various provisos limiting the application
of the personal residence and 5-acre exemptions set out in paragraphs
(d)(1) and (2) of this subsection. The first proviso is designed to
clarify, as previously noted, that landowners could take advantage of
either the 5-acre residential property exemption or the 5-acre
disturbance exemption but not both together for a 10-acre cumulative
total. The second proviso is intended to clarify that property owners
with multiple ownerships are limited to one exemption for all of their
properties and not one exemption per property. The third proviso is
designed to avoid the potential abuse of these exemptions through the
subsequent subdivision of property into smaller parcels, each
qualifying for its own personal residence or 5-acre exemption. In the
case of future listings, the Service proposes to bar the application of
these exemptions to individual parcels of land where the parcels were
subdivided from a larger block of land after the date of proposed
listing for the affected threatened species. For any subdivision
created after the relevant cut-off date, the 5-acre exemption would
apply in aggregate total to disturbances within the subdivision as a
whole and not be tallied separately for the individual tracts of land.
However, if certain parcels of land had been broken off or subdivided
from a larger parcel prior to the proposal to list the species, the
personal residence and 5-acre exemptions could still potentially be
applied to each individual parcel.
For those species which are already on the threatened species list,
the Service would propose to use a different exemption cut-off date to
deal with the problem of land subdivision. Rather than use the date of
a species' proposed listing, which may have occurred a long time ago,
the Service proposes to use March 6, 1995, as the subdivision cut-off
point. March 6, 1995 was chosen as the reference cut-off date since it
was on that date that Secretary Babbitt announced the decision to
authorize personal residence and 5-acre exemptions for threatened
species, where appropriate. Thus, for presently listed species, parcels
of land divided prior to March 6, 1995, could still qualify
individually for an exemption.
The last proviso in paragraph (d)(5) also clarifies that the new
exemptions set out in paragraphs (d)(1) and (d)(2) would not
immediately and automatically apply to species which were already on
the threatened species list as of the date of the finalization of these
amendments to 50 CFR 17.31. As previously noted, the Service is
beginning an immediate review of the potential effects of these
amendments to species which are already listed as threatened and the
agency intends to complete a preliminary assessment of this matter
within 90 days. The Service will then begin the process of formally
amending the existing regulations for those threatened species for whom
the exemptions have been found to be appropriate. The Service could
publish these proposed exemptions either for individual species or for
clusters or groups of species.
Finally, the Service notes that there is nothing in the new
proposed exemptions which would preclude a State, or a political
subdivision of a State, that is the recipient of a Habitat Conservation
Plan (HCP) permit under section 10(a)(1)(B) of the Act, from requiring
any landowner within the permit area to pay a fee to contribute to
mitigation of impacts resulting from issuance of the permit.
Public Comments Solicited
The Service intends any final action resulting from this proposal
to be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. In particular, the
Service seeks comments on the extent to which, or under what
circumstances, the small landowner and low-impact activity exemptions
should be applied to currently-listed threatened species and threatened
species listed in the future. Final promulgation of the proposed rule
will take into consideration all comments and any information received
by the Service. Any information the Service receives during the comment
period may lead to a final rule that differs from this proposed rule.
National Environmental Policy Act of 1969 (NEPA)
The Service believes this action may be categorically excluded
under the Department's NEPA procedures. (See 516 DM 2 Appendix I
Categorical Exclusion 1.10).
Required Determinations
This rule was reviewed under Executive Order 12866. The Fish and
Wildlife Service also certifies that the proposed revisions to 50 CFR
17.31 will not have a significant economic effect on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Significant adverse economic impacts are not expected as
a result of the proposed rule because: (1) The rule is intended to
reduce or eliminate altogether regulatory requirements on small
entities under the Act with respect to threatened species; and (2) the
rule restates internal administrative guidance and revises the
regulatory presumption under 50 CFR 17.31 with respect to take of
threatened species by small landowner activities, the effects of which
will be triggered by future listing decisions under the Act. Also, no
direct costs, enforcement costs, information collection, or
recordkeeping requirements are imposed on small entities by this
proposed rule, nor does the proposed rule contain any recordkeeping
requirements as defined by the Paperwork Reduction Act of 1990.
Further, this rule does not require a Federalism assessment under
Executive Order 12612 because it would have no significant Federalism
effects as described in the order. Finally, the Service has determined
that the
[[Page 37423]]
proposed action qualifies for categorical exclusion under the
requirements of Executive Order 12630, ``Government Actions and
Interference with Constitutionally Protected Property Rights,'' and
preparation of a Takings Implication Assessment is not required.
Regulations that reduce Federal restrictions on use of private property
are designated as categorical exclusions under this order.
Author
The author of this proposal is Don Barry, Counselor to the
Assistant Secretary for Fish, Wildlife and Parks, Department of the
Interior, Washington, DC 20240 (202/208-5347).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17, subpart
D of chapter I, title 50 of the Code of Federal Regulations, as set
forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.31 is revised to read as follows:
SUBPART D--THREATENED WILDLIFE
Sec. 17.31 Prohibitions.
(a) General. Except as provided for in subpart A of this part,
paragraph (d) of this section, or in a permit issued under this
subpart, all of the prohibitions and provisions in Sec. 17.21 shall
apply to threatened wildlife, except Sec. 17.21(c)(5).
(b) Cooperative agreements. In addition to any other provisions of
this part 17, any employee or agent of the Service, of the National
Marine Fisheries Service, or of a State conservation agency which is
operating a conservation program pursuant to the terms of a Cooperative
Agreement with the Service in accordance with section 6(c) of the Act,
and who is designated by his or her agency for such purposes, may, when
acting in the course of their official duties, take those threatened
species of wildlife which are covered by an approved cooperative
agreement to carry out conservation programs.
(c) Special rules. (1) Whenever a special rule in Sec. 17.40
through Sec. 17.48 applies to a threatened species of wildlife, none of
the provisions of paragraphs (a), (b), or (d) of this section shall
apply in those portions of the species' range covered by the special
rule. The special rule will contain all of the applicable prohibitions
and exceptions for the species: Provided, that where a special rule
covers only a portion of a species' range, paragraphs (a), (b), and (d)
of this section will apply to those portions of the species' range not
covered by the special rule.
(2) Whenever the Fish and Wildlife Service determines that the
individual or cumulative adverse effects of applying one or more
exemptions under paragraph (d) of this section are likely to be
significant for a given threatened species, the Fish and Wildlife
Service shall issue a special rule for that species which shall contain
only such exemptions or prohibitions as are deemed necessary and
advisable for the species.
(d) Landowner exemptions. Notwithstanding paragraph (a) of this
section, any person may take threatened wildlife incidentally in the
course of otherwise lawful activities:
(1) Conducted on a contiguous parcel of land of 5 acres or less
that is occupied by a single household dwelling and is used principally
for residential, noncommercial purposes;
(2) Conducted on a parcel of land that results in the cumulative
disturbance of no more than 5 total contiguous acres for the entire
parcel;
(3) Identified by the Fish and Wildlife Service at the time of the
final listing of the affected threatened species, in a subsequent
general notice published in the Federal Register, or in a written
response to voluntary inquiries from landowners, as likely to have
negligible adverse effects upon the species; or
(4) Conducted in accordance with a State-authorized or -developed
comprehensive habitat conservation planning program for the affected
threatened species of wildlife that has been found by the Fish and
Wildlife Service in a notice published in the Federal Register to
address the threats to the species within that State and to promote its
survival and recovery.
(5) Notwithstanding the provisions of paragraphs (d) (1) and (2) of
this section, such exemptions shall not apply:
(i) In combination with each other for any one person or ownership
and shall be mutually exclusive;
(ii) In any instance to more than one parcel of land per person or
ownership;
(iii) In the case of any threatened species of wildlife listed
after the date of final rulemaking establishing such exemptions, to
individual smaller parcels of land which were subdivided from a larger
contiguous parcel of land after the date of proposed listing of the
affected threatened species; and
(iv) In the case of threatened species of wildlife listed prior to
the date of final rulemaking establishing such exemptions, unless the
Fish and Wildlife Service has completed an assessment of the affects of
such exemptions upon such species and has published in the Federal
Register either a specific finding of applicability of such exemptions
to such species or a special rule in Sec. 17.40 through Sec. 17.48 of
this part, as appropriate, barring the application of those portions of
the exemptions which might result in significant adverse effects to
such species. For species covered by the provisions of this paragraph
(d)(5)(iv), no exemption established under the provisions of paragraphs
(d) (1) and (2) of this section shall be extended to individual smaller
parcels of land which were subdivided from a larger contiguous parcel
of land after March 6, 1995.
Dated: June 14, 1995.
George T. Frampton, Jr,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-17856 Filed 7-19-95; 8:45 am]
BILLING CODE 4310-55-P
