Rule2024-07602
Endangered and Threatened Wildlife and Plants; Enhancement of Survival and Incidental Take Permits
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 12, 2024
Effective
May 13, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish Wildlife Service (Service), revise the regulations concerning the issuance of enhancement of survival and incidental take permits under the Endangered Species Act of 1973, as amended. The purposes of these revisions are to: clarify the appropriate use of enhancement of survival permits and incidental take permits; clarify our authority to issue these permits for non-listed species without also including a listed species; simplify the requirements for enhancement of survival permits by combining safe harbor agreements and candidate conservation agreements with assurances into one agreement type; and incorporate portions of our five-point policies for safe harbor agreements, candidate conservation agreements with assurances, and habitat conservation plans into the regulations to reduce uncertainty. We also made technical and administrative revisions to the regulations. The regulatory changes are intended to reduce costs and time associated with negotiating and developing the required documents to support the applications. We anticipate that these improvements will encourage more individuals and companies to engage in these voluntary programs, thereby generating greater conservation results overall.
Full Text
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[Federal Register Volume 89, Number 72 (Friday, April 12, 2024)]
[Rules and Regulations]
[Pages 26070-26102]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07602]
[[Page 26069]]
Vol. 89
Friday,
No. 72
April 12, 2024
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 13 and 17
Endangered and Threatened Wildlife and Plants; Enhancement of Survival
and Incidental Take Permits; Final Rule
Federal Register / Vol. 89, No. 72 / Friday, April 12, 2024 / Rules
and Regulations
[[Page 26070]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 17
[Docket No. FWS-HQ-ES-2021-0152; FF09E41000 245 FXES111609C0000]
RIN 1018-BF99
Endangered and Threatened Wildlife and Plants; Enhancement of
Survival and Incidental Take Permits
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish Wildlife Service (Service), revise the
regulations concerning the issuance of enhancement of survival and
incidental take permits under the Endangered Species Act of 1973, as
amended. The purposes of these revisions are to: clarify the
appropriate use of enhancement of survival permits and incidental take
permits; clarify our authority to issue these permits for non-listed
species without also including a listed species; simplify the
requirements for enhancement of survival permits by combining safe
harbor agreements and candidate conservation agreements with assurances
into one agreement type; and incorporate portions of our five-point
policies for safe harbor agreements, candidate conservation agreements
with assurances, and habitat conservation plans into the regulations to
reduce uncertainty. We also made technical and administrative revisions
to the regulations. The regulatory changes are intended to reduce costs
and time associated with negotiating and developing the required
documents to support the applications. We anticipate that these
improvements will encourage more individuals and companies to engage in
these voluntary programs, thereby generating greater conservation
results overall.
DATES: This final rule is effective May 13, 2024.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this rule, please note that the
Office of Management and Budget (OMB) is required to make a decision
concerning the collection of information contained in this rule between
30 and 60 days after publication of this rule in the Federal Register.
Therefore, comments should be submitted to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, (see
``Information Collection'' section below under ADDRESSES) by May 13,
2024.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final rule,
are available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket
No. FWS-HQ-ES-2021-0152.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted within 30 days of publication of this document to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#98d1f6fef7c7dbf7f4f4d8feefebb6fff7ee"><span class="__cf_email__" data-cfemail="de97b0b8b1819db1b2b29eb8a9adf0b9b1a8">[email protected]</span></a> (email).
Please reference OMB Control Number 1018-0094 in the subject line of
your comments.
FOR FURTHER INFORMATION CONTACT: Bradley Shoemaker, Chief, Branch of
Recovery and Conservation Planning, U.S. Fish and Wildlife Service,
5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone: 703-358-
2307. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
The purposes of the Endangered Species Act of 1973, as amended
(ESA; 16 U.S.C. 1531 et seq.), are to provide a means to conserve the
ecosystems upon which listed species depend, to develop a program for
the conservation of listed species, and to achieve the purposes of
certain treaties and conventions. Moreover, the ESA states that it is
the policy of Congress that the Federal Government will seek to
conserve endangered and threatened species and use its authorities to
further the statutory purposes (16 U.S.C. 1531(c)(1)). The ESA's
implementing regulations are in title 50 of the Code of Federal
Regulations (CFR).
Generally, ESA section 10(a) allows the Service to issue permits.
The 1982 ESA amendments restructured section 10(a) to provide a
mechanism for issuance of permits to non-Federal entities to authorize
take of listed species that would otherwise be prohibited under section
9. Section 10(a)(1)(A) provides for the issuance of enhancement of
survival permits associated with conservation actions that are
beneficial to the species. Section 10(a)(1)(B) was added to allow for
the issuance of incidental take permits to authorize take that is
incidental to, but not the purpose of, carrying out otherwise lawful
activities.
In 1999, we promulgated regulations (at 50 CFR 17.22(c) and (d) and
50 CFR 17.32(c) and (d)) and finalized policies regarding safe harbor
agreements (SHAs) and candidate conservation agreements with assurances
(CCAAs) to incentivize the use of enhancement of survival permits to
further species recovery and conservation (64 FR 32706, 32717, and
32726; June 17, 1999).
We published minor corrections to the SHA and CCAA regulations
later in 1999 (64 FR 52676, September 30, 1999) and again in 2004 (69
FR 24084, May 3, 2004). In 2016, we revised the CCAA regulations (at
Sec. Sec. 17.22(d) and 17.32(d); 81 FR 95053, December 27, 2016) and
policy (81 FR 95164, December 27, 2016) to simplify the net
conservation benefit standard as part of the issuance criteria.
Section 10(a)(1)(B) allows for the issuance of incidental take
permits provided the application meets the statutory issuance criteria
(16 U.S.C. 1539(a)(2)(A)(i)-(iv)). In 1985, we promulgated regulations
under section 10(a)(1)(B) (at 50 CFR 17.22(b) and 17.32(b); 50 FR
39681, September 30, 1985). In 1996 we issued guidance in the form of
the Habitat Conservation Planning and Incidental Take Permitting
Processing Handbook (61 FR 63854, December 2, 1996). We published an
addendum to the handbook, known as the ``five-point policy,'' in 2000
(65 FR 35242, June 1, 2000), and we published a revised Habitat
Conservation Planning and Incidental Take Permitting Processing
Handbook in 2016 (81 FR 93702, December 21, 2016).
This final rule changes the implementing regulations for ESA
section 10 related to enhancement of survival permits supported by SHAs
and CCAAs (Sec. Sec. 17.22(c) and (d) and 17.32(c) and (d)) and to
incidental take permits supported by habitat conservation plans
(Sec. Sec. 17.22(b) and 17.32(b)). This rulemaking also changes
relevant portions of 50 CFR part 13 (which applies to all Service
permits) and part 17 (which applies to all Service permits under the
ESA) to incorporate provisions that are necessary to implementing
Sec. Sec. 17.22 and 17.32, excluding Sec. Sec. 17.22(a) and 17.32(a).
This rulemaking modifies ESA section 10(a)(1)(A) and (B) regulations to
[[Page 26071]]
improve, clarify, and expedite the Service's administration of those
provisions (again, excluding Sec. Sec. 17.22(a) and 17.32(a)). This
rulemaking does not affect other permits issued under the ESA, such as
import or export permits.
The regulatory changes in this final rule will reduce the time it
takes for applicants to prepare and develop the required documents to
support applications for section 10(a) permits issued under Sec. Sec.
17.22(b) and (c) and 17.32(b) and (c), thus accelerating permit
issuance and conservation implementation. This goal will be
accomplished by:
<bullet> clarifying the appropriate permit mechanism for
authorizing take;
<bullet> simplifying our permitting options under section
10(a)(1)(A) by combining CCAAs and SHAs into one agreement type and
allowing the option to return to baseline;
<bullet> providing additional flexibility under section 10(a)(1)(B)
for the Service to issue permits for non-listed species only, without
requiring that a listed species also be covered by the permit; and
<bullet> clarifying the requirements for complete applications
under the provisions at both ESA section 10(a)(1)(A) and (B).
We expect these changes to reduce the costs and time associated
with negotiating and developing the required documents to support the
applications. We anticipate that these improvements will encourage more
individuals and companies to engage in these voluntary programs,
thereby generating greater conservation results overall.
The regulatory changes in this final rule clarify under which
statutory provision it is appropriate for the Service to authorize the
proposed take, either through an enhancement of survival permit
(section 10(a)(1)(A)) or incidental take permit (section 10(a)(1)(B)).
The statutory language in the ESA clearly reflects Congress's intent
that take for scientific purposes or to enhance the propagation or
survival of the affected species should be authorized under section
10(a)(1)(A) through an enhancement of survival permit. By contrast,
take that is incidental to, but not the purpose of, the carrying out of
otherwise lawful activities is to be authorized under section
10(a)(1)(B) through an incidental take permit. Consistent with
congressional intent, when we determine under which permit authority to
authorize a take, we must first consider the nature and purpose of the
activities causing the take.
We clarify in the final rule that enhancement of survival permits
authorize take of covered species, above the baseline condition, when
the conservation actions in the associated conservation agreement are
of the nature of improving the condition of the species or the amount
or quality of its habitat to provide a net conservation benefit to the
covered species (e.g., beneficial actions that address threats to the
covered species, establish new wild populations, or otherwise benefit
the covered species). In contrast, incidental take permits authorize
take that is incidental to otherwise lawful activities (e.g., resource
extraction, commercial and residential development, and energy
development), and the conservation actions in the associated
conservation plan are of the nature of minimizing and mitigating the
impacts of the anticipated incidental take for the covered species.
Maintaining this distinction between these two permit types will ensure
that take is authorized under the proper statutory authority, reduce
confusion for applicants, expedite the permitting process, and maximize
conservation of listed and at-risk species.
This final rule clarifies that the Service may issue enhancement of
survival permits and incidental take permits for non-listed species
without including a listed species on the permit. Immediately upon
permit issuance, the permittee will begin implementing the conservation
commitments for the non-listed covered species. However, the take
authorization will not go into effect until such time as the non-listed
covered species is listed as either endangered or threatened, provided
the permittee is complying with the permit and properly implementing
the agreement or plan. This approach is consistent with both (1)
enhancement of survival permits currently issued for non-listed species
under 50 CFR 17.22(d) or 17.32(d) and supported by a CCAA; and (2)
incidental take permits currently issued under 50 CFR 17.22(b) or
17.32(b) and supported by a conservation plan that includes both listed
and non-listed species. Our approach furthers the statutory purposes of
the ESA by encouraging conservation of fish and wildlife before species
become depleted to the point that they require listing. This final rule
simplifies the ESA section 10(a)(1)(A) regulations by covering both
listed and non-listed species for enhancement of survival permits under
Sec. Sec. 17.22(c) and 17.32(c), and by rescinding the CCAA
regulations under Sec. Sec. 17.22(d) and 17.32(d) (which are
incorporated into Sec. Sec. 17.22(c) and 17.32(c)).
We are clarifying the language in both Sec. Sec. 17.22(b) and (c)
and 17.32(b) and (c) to emphasize that our authority extends to
authorizing take that would otherwise be prohibited under section 9 of
the ESA, rather than to authorize the applicant's proposed conservation
and ongoing land management activities or the otherwise lawful
activities that may result in take of a covered species. In other
words, the issuance of enhancement of survival or incidental take
permits does not authorize the covered activities themselves; rather,
it authorizes only the take of covered species resulting from those
activities. This clarification is specified in Sec. Sec. 17.22(b)(1)
and 17.32(b)(1) for regulations related to section 10(a)(1)(B) permits
and at Sec. Sec. 17.22(c)(1) and 17.32(c)(1) for regulations related
to section 10(a)(1)(A) permits. We further clarify what constitutes a
complete application for enhancement of survival and incidental take
permits and that the Service will process an application when we have
determined it to be complete.
With respect to ESA section 10(a)(1)(A), the regulatory changes in
this final rule combine the SHA and CCAA into one type of conservation
agreement, called a conservation benefit agreement. We use the term
``conservation benefit agreement'' or ``conservation agreement'' to
describe the supporting document required for an enhancement of
survival permit. This rule simplifies the process for new conservation
agreements developed in support of enhancement of survival permit
applications. This rule also establishes that applicants for an
enhancement of survival permit have the option to return the property
to baseline conditions. We define ``baseline condition'' to mean the
population estimates and distribution or habitat characteristics across
the enrolled property that currently sustain seasonal or permanent use
by the covered species at the time a conservation agreement is executed
by the Service and the property owner or by a programmatic permit
holder and the property owner. Allowing applicants to choose whether to
return to baseline condition provides more flexibility in the agreement
and may increase participation. In addition, we clarify that the
Service may issue enhancement of survival permits that authorize both
incidental and purposeful take that may result from implementing
beneficial actions under the conservation agreement, such as
reintroducing a species to a covered property or capturing and
relocating a covered species that has dispersed to an adjacent property
not subject to the
[[Page 26072]]
agreement. After the effective date of this final rule, the Service
will no longer implement the SHA and CCAA policies.
With respect to ESA section 10(a)(1)(B), the regulatory changes in
this final rule incorporate aspects of the five-point policy for
incidental take permits and guidance from the 2016 Habitat Conservation
Planning Handbook to reduce confusion and streamline the permitting
process. Clarifications include a description of the requirements for a
complete incidental take permit application and revisions to the
corresponding incidental take permit issuance criteria. We use the term
``habitat conservation plan'' or ``conservation plan'' to describe the
supporting document required for an incidental take permit.
Nothing in these revisions to the regulations is intended to
require that any previous permits issued under ESA section 10(a)(1)(A)
or (B) be reevaluated when this rule is effective. For applications in
process and published in the Federal Register prior to the effective
date of this rule, applicants will not be required to meet the new
regulatory requirements. However, applications for new permits,
renewals, or amendments received after the date specified above in
DATES are subject to the revisions in this final rule.
This Rulemaking Action
Part 13 of title 50 of the Code of Federal Regulations sets forth
general permitting regulations that apply to all permits issued by the
Service. This rule amends 50 CFR part 13 to address the specific
revisions in 50 CFR 17.22 and 17.32 and clarifies how the Service
administers permits under Sec. Sec. 17.22 and 17.32. This final rule
rescinds Sec. Sec. 17.22(d) and 17.32(d); the references in part 13 to
those paragraphs are removed and modified to reference the remaining
paragraphs (i.e., references to Sec. 17.22(b) through (d) are changed
to Sec. 17.22(b) and (c), and references to Sec. 17.32(b) through (d)
are changed to Sec. 17.32(b) and (c)).
Clarification of ESA Section 10(a)(1)(A) and (B)--Purpose
Section 10(a)(1)(A) of the ESA authorizes the issuance of permits,
under certain terms and conditions, for any act otherwise prohibited by
section 9 for scientific purposes or to enhance the propagation or
survival of the affected species. In 1999, the Service further
clarified in Sec. Sec. 17.22(c) and (d) and 17.32(c) and (d) and the
SHA and CCAA policies that conservation actions to enhance the survival
of affected species would be authorized under ESA section 10(a)(1)(A)
enhancement of survival permits. The permit is intended to incentivize
voluntary conservation by authorizing take of covered species that may
result from implementing the approved conservation agreement (formerly
SHA or CCAA) and providing assurances that the Service will not in the
future require an increased commitment or impose additional
restrictions on the permittee's current management and use of land,
water, or financial resources. As a result, a property owner may
continue ongoing activities and implement beneficial conservation
measures without concern that their activities may be curtailed by
increasing populations or distribution of a listed species or a species
that may become listed in the future. Therefore, property owners
managing or improving habitat that could be used by a species that is
listed or could be listed, or establishing new populations of such
species, have an incentive to continue their activities without fear of
being subjected to increased regulatory burdens in the future. In
general, take associated with working lands (e.g., agriculture and
silviculture) that are managed in a sustainable fashion to improve
conditions for listed and at-risk species, may be appropriate under
this authority depending upon the proposed covered activities.
The authority granted under ESA section 10(a)(1)(B) allows the
Service to issue permits to authorize take that would otherwise be
prohibited by section 9(a)(1)(B), provided the taking is incidental to,
and not the purpose of, carrying out an otherwise lawful activity.
Under section 10(a)(1)(B), the impacts of the take associated with the
otherwise lawful activities must be minimized and mitigated to the
maximum extent practicable, i.e., the nature of the associated
conservation plan is a mitigation plan to minimize and offset the
adverse impacts to the species that are incidental to otherwise lawful
activities. The purpose is to provide a means for ESA compliance when
otherwise lawful activities may result in incidental take of listed
species. In contrast, under section 10(a)(1)(A), the primary purpose is
to incentivize voluntary conservation of listed and at-risk species.
Take Authorization for Non-Listed Species Under ESA Section 10(a)(1)(A)
and (B)--Authorities and Rationale
The Service currently issues both enhancement of survival and
incidental take permits that cover take of listed as well as non-listed
species if they become listed in the future. These permits are issued
upon the Service's approval of the application, and implementation of
the conservation measures for the non-listed species begins upon
issuance of the permit. If a non-listed species becomes listed, the
take authorization becomes effective upon the date of listing, provided
that the permittee is in full compliance with the enhancement of
survival or incidental take permit. This approach is supported by the
House of Representatives Report on the Endangered Species Act
Amendments of 1982, which reflects that Congress contemplated that non-
listed species could be covered in conservation plans. H.R. Rep No. 97-
835 (Sept. 17, 1982), at 30 (``Although the conservation plan is keyed
to the permit provisions of the Act which only apply to listed species,
the Committee intends that conservation plans may address both listed
and unlisted species.'') (emphasis added).
On June 17, 1999, the Service published the CCAA Policy (64 FR
32726) and implementing regulations at 50 CFR 17.22(d) and 17.32(d) (64
FR 32706) under ESA section 10(a)(1)(A) for issuing enhancement of
survival permits for non-listed species. The Service further revised
this policy and the regulations in 2016 (81 FR 95053 and 95164;
December 27, 2016). Since the initial policy and regulations were
published, the Service has issued 69 enhancement of survival permits
for non-listed species in association with a CCAA; 62 of these continue
to be implemented.
Clarifying in the regulations that we can issue permits that
address only non-listed species under ESA section 10(a)(1)(B) is
consistent with congressional intent to provide long-term regulatory
assurances and builds on the success demonstrated by the CCAA program.
Recognizing our ability to authorize take of non-listed species under
section 10(a)(1)(B) if they become listed under the ESA, alone or
combined with listed species, will help to ensure that take is
authorized under the appropriate permit authority depending upon
whether it is associated with beneficial conservation actions or
incidental to otherwise lawful activities. This clarification reduces
confusion and eliminates debate regarding the appropriate permit
authority by which take should be authorized, thereby allowing the
planning efforts to be focused on the permitting mechanism that is
applicable to the project purpose. We acknowledge that the 2016 Habitat
Conservation Planning Handbook reflects current policy, stating that
applicants must include at least one ESA-listed species in a
conservation plan. We plan to update the handbook accordingly to remove
this requirement.
[[Page 26073]]
Clarifications
Service Authority Extends To Authorizing Take, Not Authorizing the
Activities
Existing language in Sec. 17.22(b)(1) and (c)(1) and Sec.
17.32(b)(1) and (c)(1) refers to authorizing activities that are
prohibited. The ESA prohibits take of listed species, not the
activities that cause take. Therefore, in this final rule we clarify
that, under these authorities, the Service authorizes take and not the
underlying activities themselves. This change will reduce confusion
among applicants and the interested members of the public who review
and provide comments on permit applications.
Expediting the Development of Conservation Agreements and Conservation
Plans
One of the common concerns expressed by applicants for permits
under section 10(a)(1)(A) or (B) is the amount of time and resource
investment it takes to develop the necessary documents to support the
applications. The application process for an enhancement of survival
permit or incidental take permit is divided into three phases: (1)
preapplication (project proponent or property owner decides whether to
apply for a permit); (2) conservation agreement or plan development and
submission of a complete application to the Service; and (3)
application processing (the Service processes the complete application
and makes a permit decision).
While the Service has successfully implemented measures to ensure
the efficient processing of permit applications once they are deemed
complete, we have not been as successful with expediting the
preapplication and conservation agreement or plan development phases,
despite the updated guidance provided respectively in the 2016 Habitat
Conservation Planning Handbook and current SHA and CCAA regulations,
policies, and guidance. This outcome may be due to several factors,
such as the size and complexity of the proposed project; number of
species for which take is sought; and, in some cases, challenges to the
interpretation of our regulations, policies, and guidance. Resolving
issues that arise during development of the conservation agreement or
plan often requires the expenditure of a significant amount of time and
resources by both the applicant and the Service. This situation can
result in delays to the applicant's project implementation and limit
the Service's ability to provide timely assistance to other applicants.
To provide clarity, reduce confusion, and save time, both for
applicants and the Service, this final rule clarifies the current
regulations and revises the requirements for permit applications in
Sec. 17.22(b)(1) and (c)(1) and Sec. 17.32(b)(1) and (c)(1) by
codifying portions of the 2016 Habitat Conservation Planning Handbook,
five-point policy, SHA policy, and CCAA policy, as applicable. These
clarifications address the requirements that an applicant must meet for
the Service to: (1) determine that an application is complete, (2)
publish the receipt of a complete application, (3) begin processing the
application, and (4) make a permit decision consistent with section 10
of the ESA.
This final rule refines the incidental take permit issuance
criteria under Sec. 17.22(b)(2) and Sec. 17.32(b)(2) for plans
permitted under ESA section 10(a)(1)(B) to align with the statute,
existing policy, and practice. These revisions, along with the revised
requirements for a complete application, will lead to more efficient
permit application processing and decision-making and provide a better
record supporting our permit decision. The issuance criteria for
conservation agreements permitted under ESA section 10(a)(1)(A) will
remain unchanged, although we clarify the meaning of ``net conservation
benefit'' in the definitions section at Sec. 17.3. The revisions in
this final rule related to issuance criteria in parts 13 and 17 are
limited to enhancement of survival and incidental take permits issued
under Sec. Sec. 17.22 and 17.32, excluding Sec. Sec. 17.22(a) and
17.32(a), and do not affect other permits issued under the ESA, such as
import or export permits, or permits issued under other statutes.
Permit Renewal and Amendment Processes
The regulatory changes in this final rule clarify that permit
renewals and amendments, or a combination thereof, are subject to the
current laws and regulations. The application must be evaluated under
current policies and guidance in place at the time of the decision on
the renewal or amendment. For amendments to enhancement of survival or
incidental take permits, the scope of the Federal decision extends only
to the requested amendment, not to the previously approved permit or
unchanged portions of the conservation agreement or plan. The terms of
the original permit, including the take authorization and assurances,
remain in effect. The proposed amendment is the only change that is
considered. Providing these clarifications will reduce confusion and
reassure permittees applying for renewals and amendments that the
Service will not reconsider all provisions of their existing permits
and conservation agreements or plans, thereby expediting development of
a complete application and processing of that application.
Changes From the Proposed Rule
Based on comments we received on the proposed rule (88 FR 8380,
February 9, 2023), and to provide clarifications, we include the
changes described below to the proposed regulations. Other than these
revisions, we are finalizing the rule as proposed:
1. In the preamble to this final rule and in 50 CFR part 13, we
made editorial corrections to clarify that this rule pertains only to
ESA section 10(a) permits issued under 50 CFR 17.22 and 17.32.
2. In the preamble, we made edits to further clarify and address
confusion regarding the appropriate provision of ESA section 10(a)
under which the Service will authorize take.
3. In Sec. 17.3, we made the following changes:
a. Added ``across'' to the definition of ``baseline condition'' to
reflect that we evaluate the baseline for the entire area to be
enrolled in the agreement. We also addressed situations in which the
species and habitat are already adequately managed to the benefit of
the species and explained how the landowner can achieve a net
conservation benefit.
b. Revised the definition of ``changed circumstances'' to add
``effects of climate change'' as an example of a changed circumstance.
c. To reduce confusion, we revised the definition of ``covered
species'' by substituting the term ``at-risk'' for ``reasonable
potential to be considered for listing'' and explaining what at-risk
means in the definition.
d. Clarified the definition of ``net conservation benefit'' by
stating the improvements in the condition must be expected to result
from implementation of the conservation agreement. We also clarified
that maintenance of good quality habitat and addressing future threats
under the control of the property owner would qualify as meeting the
net conservation benefit standard.
e. Revised the definition of ``property owner'' to reflect that
owners have ``rights'' to water or other natural resources, not actual
ownership of those resources and added Tribal laws and regulations
``sufficient to carry out the proposed activities, subject to
applicable State and Federal laws and regulations.''
[[Page 26074]]
4. In Sec. Sec. 17.22(b)(1)(ii) and 17.32(b)(1)(ii), to reduce
confusion regarding covered species, we removed the phrase ``of the
individuals to be taken.''
5. In Sec. Sec. 17.22(b)(1)(viii) and 17.32(b)(1)(viii), for
consistency with the five-point policy (65 FR 35242, June 1, 2000), we
clarified that the appropriate scope of the effectiveness and
compliance monitoring programs for incidental take permits should be
commensurate with the scope and duration of the operating conservation
program and proposed project impacts.
6. In Sec. Sec. 17.22(b)(3) and 17.32(b)(3), we added a reference
to ``Sec. Sec. 17.22(b)(1)(xi) and 17.32(b)(1)(xi)'' to clarify that
we have the authority to include additional permit conditions, if
necessary.
7. In Sec. 17.22(b)(5)(i)-(iii) and Sec. 17.32(b)(5)(i)-(iii), we
corrected an oversight that had omitted these sections.
8. In the regulations at Sec. Sec. 17.22(c)(5) and 17.32(c)(5), we
corrected a reference that had indicated that assurances extend only to
neighboring landowners in Sec. 17.22(c)(5)(ii). We corrected this
reference to Sec. 17.22(c)(5)(i) to indicate that assurances apply to
all enhancement of survival permittees and participating property
owners.
9. For consistency throughout Sec. Sec. 17.22(c) and 17.32(c),
where we used the term ``enrolled land,'' we replaced it with
``enrolled property'' where appropriate.
Summary of Comments and Responses
In our proposed rule to revise the regulations for ESA section
10(a)(1)(A) and (B) published on February 9, 2023 (88 FR 8380), we
requested public comments. By the close of the public comment period on
April 10, 2023, we received 71 public comments on our proposed rule. We
received comments from various sources, including individual members of
the public, States, Tribes, industry organizations, corporations,
permittees, applicants, legal foundations and firms, and environmental
organizations. In general, we received a wide range of comments, often
multiple pages, that ranged from full support of the changes to general
opposition. However, most commenters either expressed support and
provided recommendations to further improve the regulations or
expressed opposition to the proposed regulations but included
suggestions to make the changes acceptable.
We reviewed all public comments prior to developing this final rule
but did not incorporate or respond to comments that are not relevant to
or are beyond the scope of this rulemaking action. Summaries of the
substantive comments and our responses are provided below. We combined
similar comments where appropriate. They are organized as comments
specific to: both conservation benefit agreements and habitat
conservation plans; conservation benefit agreements; habitat
conservation plans; and required determinations.
Comments Regarding Conservation Benefit Agreements and Habitat
Conservation Plans
Comment 1: Several commenters requested that company affiliates,
associates, subsidiaries, corporate families, and assigns of an
applicant be included in the definition of ``applicant'' and be covered
by incidental take and enhancement of survival permits, and they
requested that we explain the rationale for exclusion.
Response: These entities are excluded from the definition of
``applicant'' because we must be able to specifically identify the
permittee and determine if the permittee is eligible to hold a permit
under Sec. 13.21. In addition, if the permit is issued, we must be
able to specifically identify who is responsible for any permit
violations that may occur.
Comment 2: Two commenters requested that we add language to
recognize that an entity with the power of eminent domain is a proper
applicant for an incidental take permit even where all or portions of
the permit area are not owned or controlled by the entity with the
power of eminent domain at the time the Service processes the permit
application. In addition, one of the commenters suggested that, where
the Service has concerns about an applicant's ability to implement a
habitat conservation plan despite the applicant possessing the power of
eminent domain, the Service may include a permit condition indicating
the incidental take permit will not be effective (i.e., will not
authorize incidental take) unless and until requisite ownership or
control of the permit area has been obtained by the applicant.
Response: This comment is outside the scope of the proposed
regulation revisions, and the requested changes would not further our
goals of reducing confusion and streamlining the permitting process.
However, we will consider providing additional guidance on this topic
in the next update to the Habitat Conservation Planning Handbook.
Comment 3: Several commenters stated they oppose the rule because
it judges projects based on their implied purpose rather than their
conservation outcomes. They further asserted that the subjective
interpretation of ``primary purpose'' of the agreement is likely to
make most projects ineligible for conservation agreements, regardless
of whether the projects would benefit species conservation.
Response: We considered different ways to articulate how we intend
to determine under which permit authority to authorize the requested
take. The purposes of section 10(a)(1)(A) and section 10(a)(1)(B) are
inherently different. The former is to issue enhancement of survival
permits that authorize take associated with conservation agreements and
ongoing land management activities that provide a net conservation
benefit to the covered species. The latter is to issue permits that
authorize take that is incidental to, but not the purpose of, carrying
out otherwise lawful activities where the impacts to the covered
species must be minimized and mitigated. To determine the appropriate
permit authority, we intend to look at the nature and purpose of the
proposed activities and the anticipated outcomes of the take. For an
enhancement of survival permit, the purpose and anticipated
conservation outcome of the covered activity must be to provide a
benefit to the species covered by the permit, i.e., to improve the
condition of a species, the amount or quality of its habitat, or both.
Conversely, for an incidental take permit, the purpose and anticipated
outcome of the covered activity is to carry out otherwise lawful
activities that are likely to result in incidental take that is harmful
to the species and requires mitigation (e.g., activities that convert
habitat to other uses). Thus, using the primary purpose and anticipated
conservation outcome of the project provides a straightforward method
for applicants to determine which type of permit to pursue and is
consistent with Congress's intent in creating the two different types
of permits.
It is unclear what the commenter means by ``implied purpose,'' but
the Service anticipates that applicants will provide sufficient
information to allow us to evaluate each project's primary purpose and
intended conservation outcome. We will consider the circumstances on a
case-by-case basis to decide which permit type is appropriate for the
project.
Comment 4: One commenter asserted there were two flaws in the
proposed distinction between incidental take and enhancement of
survival permits: (1) the distinction would push more projects into
incidental take permits, which would have a negative effect on
[[Page 26075]]
endangered species conservation because of the lower conservation
standard of these permits, and (2) the process for obtaining an
incidental take permit is inefficient, which would result in delays for
a larger number of projects if more were pushed to these permits. The
commenter further asserted that the high price tag of developing
habitat conservation plans, which on average is greater than $1
million, would effectively eliminate the incentive for voluntary
conservation within the private sector.
Response: There are inherent differences in the conservation
standards between enhancement of survival permits (requiring a net
conservation benefit) and incidental take permits (requiring
minimization and mitigation to the maximum extent practicable). This
difference is due to the intended purpose of the authorized take under
each type of permit. However, conservation for listed and non-listed
species can be achieved through both conservation agreements and
conservation plans. Providing a clear distinction in the regulations
under which statutory provision we will authorize take is critical to
the proper implementation of both voluntary conservation programs. We
acknowledge that the costs of developing conservation plans can be
significant, but we do not view that issue as an appropriate basis for
issuing an enhancement of survival permit for a project that is not
primarily aimed at conservation and involves incidental take. The
regulatory revisions are also intended to create efficiencies in the
negotiation and permitting processes that will benefit applicants for
both permit types. We also intend to explore additional measures to
improve the efficiency of the incidental take permitting process, and
we will consider new policies or updates to the Habitat Conservation
Planning Handbook to implement such measures.
Comment 5: One commenter suggested the Service should provide
additional clarification and explanation regarding the types of
activities that may be covered by an enhancement of survival permit as
compared to an incidental take permit.
Response: While certain types of activities are clearly more
appropriate for an incidental take permit versus an enhancement of
survival permit, such as housing developments and new infrastructure
development, it is not possible to list all the different types of
activities that could be covered by each permit type. To determine the
appropriate permit authority, we will consider, on a case-by-case
basis, the applicant's purpose for seeking a permit and the anticipated
conservation outcome of the activity. We intend to provide additional
guidance on this topic in our respective handbooks.
Comment 6: One commenter stated that the Service goes beyond our
statutory authority to require project proponents to utilize incidental
take permits. The commenter stated that, where a project proponent
seeks to implement voluntary conservation measures (e.g., preserving
habitat, implementing operational controls, or funding research) for
non-listed species--species for which the take prohibition does not
apply--the Service should not dictate the type of conservation
agreement to use.
Response: Whether to pursue a permit is voluntary, but once
applicants make that choice, our responsibility is to determine both
that applicants are pursuing the appropriate permit and whether an
application under the appropriate permit authority is complete. With
the changes we are making to our regulations, the appropriate permit
(incidental take versus enhancement of survival) does not depend on the
species an applicant is seeking to include, whether a listed or non-
listed species. Rather, it depends on the primary purpose and
anticipated conservation outcome of the project and the proposed
covered activities for which take authorization is requested.
Comment 7: Some commenters stated that it is broadly beneficial to
provide more clarity about the application of enhancement of survival
and incidental take permits but requested that we clarify how the
primary purpose of activities will be determined and ensure that the
standard does not inadvertently limit the ability of agricultural
producers to seek enhancement of survival permits for their activities.
Response: The type of applicant does not dictate which type of
permit is appropriate for the activity. We will consider the project
information provided by potential applicants and work with them on a
case-by-case basis to determine their primary purpose for requesting a
permit, the anticipated conservation outcomes of their project, the
activities for which they are seeking take coverage, and the associated
plan or agreement. This clarification does not restrict or limit
eligible applicants for enhancement of survival permits. In general,
take associated with working agricultural lands that are managed in a
sustainable fashion to improve conditions for listed and at-risk
species may be appropriate for permitting through a conservation
agreement, depending upon the proposed covered activities.
Comment 8: One commenter requested that we clarify that energy
project proponents continue to have the flexibility to choose between
either an enhancement of survival or incidental take permit depending
on the primary purpose of the covered activity.
Response: Energy project proponents, as well as other project
applicants, should seek assistance from the Service early in the
preapplication and project planning phase to ensure the appropriate
permit is pursued. When deciding under which permit authority to
authorize take, we consider the primary purpose of the project and
anticipated conservation outcomes, regardless of the identity of the
applicant.
Comment 9: One commenter asserted that for some renewable energy
projects an enhancement of survival permit may provide a regulatory
mechanism to seek coverage while the applicant is researching,
developing, or testing a novel mitigation technology or technique. The
commenter further stated that the last 20 years of such advancements in
renewable energy show promise, but that mitigation technology remains a
nascent industry, and the Service is uniquely situated to provide a
regulatory incentive for renewable energy companies to further invest
in such technologies and techniques. For these reasons, the commenter
recommends that we ensure sufficient flexibility in our regulations so
that renewable energy development activities are not prohibited under
enhancement of survival permits, especially related to listed species
and the investment in minimization research and development. Some
commenters recommended that the Service allow research as a mitigation
option, while others objected to the recommendation, stating that it
would authorize take without properly mitigating the impacts of the
taking. However, commenters stated that if research is allowed as
mitigation, the regulations should clarify that both the research and
the informed conservation must be requirements of the associated
incidental take permit and the mitigation must offset the impacts of
the taking, not just inform future conservation.
Response: As stated in our mitigation policy, research that is
directly linked to reducing threats or that provides a quantifiable
benefit to the species may be appropriate when: (a) the major threat to
a resource is something other than habitat loss, (b) the Service can
reasonably expect the outcome of
[[Page 26076]]
research or education to offset the impacts, or (c) the proponent
commits to using the results of the research to mitigate impacts.
Research should be included as part of a mitigation package only when
other reasonable options for mitigation have been fully exhausted. In
general, energy development projects do not have a primary purpose of
habitat and species conservation and should seek incidental take
permits.
Comment 10: Several commenters urged us to clarify and explain what
type of activities may be covered by an enhancement of survival permit
as opposed to an incidental take permit. The commenters further stated
that, because we intend to combine SHAs and CCAAs into a single type of
conservation agreement to support the issuance of an enhancement of
survival permit, we should also clarify the full scope of activities,
formerly covered by a CCAA, that would be eligible for inclusion in a
conservation agreement. One commenter also stated that it is unclear
whether all the activities currently covered by a CCAA and associated
permit would still be eligible for inclusion in a conservation
agreement.
Response: Because of the extent of variability among projects, it
is not possible for us to categorize all the types of activities that
might be covered by an enhancement of survival permit as opposed to an
incidental take permit. With the changes we are making to these
regulations, it is possible that some activities affecting non-listed
species that are included in existing CCAAs may in the future be found
more appropriate for authorization though an incidental take permit.
But, as previously stated, we would consider the purpose for applying
for a permit, the anticipated conservation outcome, and covered
activities to determine which permit is appropriate.
Comment 11: A commenter asserted that applicants seeking an
enhancement of survival permit may propose a variety of activities for
incidental take authorization. They stated that the ``primary purpose''
of the conservation agreement may not be solely to ``benefit the
covered species'' but could include a variety of other purposes
depending on the needs and objectives of the applicant. The commenter
suggested that instead of requiring a ``primary purpose'', the
objective of enhancement of survival permits should be ``providing a
benefit to the covered species'' irrespective of the primary purpose of
the conservation agreement. Another commenter suggested adding the
language shown here in brackets: Enhancement of survival permits
authorize take of covered species, above the baseline condition, when
the primary purpose of the associated conservation agreement is to
implement beneficial actions that address threats to the covered
species, establish new wild populations, or otherwise benefit the
covered species; [or where the land or water management actions covered
by the conservation agreement benefit the species even though the
primary purpose of those actions may not be conservation].
Response: Because both conservation agreements and plans may
provide a benefit to the covered species, providing such a benefit is
not a sufficient basis to distinguish between them. Rather, it is
appropriate to consider the primary purpose and the anticipated
conservation outcomes in the context of conservation agreements to
further the statutory purpose of section 10(a)(1)(A), enhancing the
propagation or survival of the species. We have clarified in the
preamble that the conservation actions in the associated conservation
agreement or plan will be used to determine the appropriate permitting
authority. We have also clarified that take from both proposed
conservation activities and ongoing land management can be authorized
under enhancement of survival permits. Additionally, as discussed in
response to comment 4, both conservation agreements and plans can
provide conservation benefits to listed and non-listed species even
though the standards under each authority are different.
Comment 12: One commenter believes that conservation agreements
will primarily apply to activities designed to enhance the survival of
the species and not, as some past CCAAs have allowed, to provide take
protections for economic activities that could incidentally take the
species. The commenter indicated that we should clarify this issue in
the regulations and on the corresponding application forms.
Response: Clarifying in the regulations that a conservation plan
can be developed without inclusion of a listed species will allow
incidental take permits to be pursued where previously enhancement of
survival permits were deemed the only option because of the former
policy that incidental take permits applications must include at least
one listed species. Basing the distinction between incidental take and
enhancement of survival permits on the primary project purpose and
anticipated conservation outcome will ensure that take is authorized
under the appropriate authority. We will include additional guidance in
our handbooks to further address this issue.
Comment 13: Several commenters asserted that renewable energy
projects serve a conservation purpose and are vital to addressing
climate change, which is causing long-term impacts on species. The
commenters stated that renewable energy projects may have short-term or
immediate impacts on species, but such impacts are likely offset by the
long-term benefits that these projects collectively create. They
further stated that, where opportunities exist to recognize these
benefits, expediting permits for projects that address climate change
will provide a greater incentive for implementing renewable energy
projects.
Response: We acknowledge that many renewable energy projects will
reduce greenhouse gas emissions and the otherwise-anticipated harmful
effects of climate change on species and the environment. The
regulatory changes in this rule are intended to help streamline the
regulatory process for all applicants, including proponents of
renewable energy projects, and decrease the time for permit approval
and issuance. When reviewing a plan or agreement, we consider its
duration to determine if the issuance criteria and standards can be met
during that timeframe.
Comment 14: One commenter suggested that the issuance criteria (50
CFR 17.22(c)(1)) be amended to expressly require that the purpose of
the proposed conservation agreement must be to provide a conservation
benefit for the species through enhancing its propagation or survival.
Response: It is not necessary to add this language to Sec.
17.22(c)(1) because the issuance criteria at Sec. Sec. 17.22(c)(2)(ii)
and 17.32(c)(2)(ii) already require that ``the implementation of the
terms of the conservation agreement is reasonably expected to provide a
net conservation benefit.''
Comment 15: Several commenters were concerned that the proposed
rule appeared no longer to apply ``no surprises'' assurances to
enhancement of survival permits according to current practice. They
stated that we should retain the existing ``no surprises'' assurance
regulations for conservation agreements and plans and apply them to
incidental take and enhancement of survival permits. The commenters
asserted that, while the Service states that the well-established ``no
surprises'' assurances will continue to apply, the proposed regulatory
revisions suggest otherwise. Several commenters pointed out that the
proposal appears to inadvertently omit the existing language on ``no
surprises'' assurance in Sec. 17.22(b)(5) and (c)(5), as well as in
Sec. 17.32(b)(5) and (c)(5). The commenters
[[Page 26077]]
stated that, assuming that this was an inadvertent omission, we should
correct the error when finalizing the rule by reinserting subparagraphs
(i), (ii), and (iii) in Sec. Sec. 17.22(b)(5) and 17.32(b)(5).
Response: As stated in the proposal, we intend to retain ``no
surprises'' assurances for both permit types. In this final rule, for
enhancement of survival permits we revised Sec. 17.22(c)(5) and Sec.
17.32(c)(5) so that the assurances apply to Sec. 17.22(c)(5) and Sec.
17.32(c)(5) in their entirety, not just to each paragraph (c)(5)(ii).
Regarding incidental take permits, the proposed regulatory revisions do
not alter the protections provided by the ``no surprises'' rule, but
there was an inadvertent omission in Sec. Sec. 17.22(b)(5) and
17.32(b)(5), which we corrected.
Comment 16: Several commenters stated that the assurances
referenced in new Sec. Sec. 17.22(c)(5) and 17.32(c)(5) should apply
to all sections of Sec. 17.22(c)(5), and not just paragraph
(c)(5)(ii). Another commenter stated that the proposed definition of
``changed circumstances'' appears to limit the application of the
current no surprises assurances to conservation plans and incidental
take permits, thus leaving out conservation agreements and enhancement
of survival permits.
Response: We revised the references in Sec. Sec. 17.22(c)(5) and
17.32(c)(5), so that the assurances apply not just to neighboring
property owners, but to all property owners who participate in a
conservation agreement. Additionally, we did not intend to limit the no
surprises assurances to conservation plans. Although we deleted the
requirement for a changed circumstances section in a conservation
agreement, these concepts are incorporated into the monitoring and
adaptive management portions of the agreement.
Comment 17: Several commenters supported the proposed clarification
that we authorize the incidental take and not the underlying otherwise
lawful activity and land use. One commenter stated that, in the
introductory language of 50 CFR 17.22, Sec. 17.22(a)(1), and all other
places in Sec. Sec. 17.22 and 17.32 where a ``permit for an
activity'' is described, the language should be revised to ``permit for
take associated with a covered activity.'' The commenter also stated
that all references to an ``activity'' may need to be changed to a
``covered activity.''
Response: We did not propose any changes to Sec. Sec. 17.22(a) or
17.32(a). Rather, the proposed revisions were limited to Sec. Sec.
17.22(b) and (c) and 17.32(b) and (c). Therefore, we are not making any
changes to Sec. Sec. 17.22(a) or 17.32(a) in this final rule.
Comment 18: One commenter asserted that, if a permittee proceeds
with the activities that would otherwise be unlawful under the ESA,
then the Service is in effect authorizing those activities by issuing
the permit and the Service's scope must analyze the impacts of the
covered activities under the National Environmental Policy Act (NEPA).
Response: As we explain in the regulatory language, the permit does
not authorize the covered activities themselves, and the Service does
not have the authority to approve the activities. Rather, the permit
authorizes take that may be associated with the activities and which
would otherwise be prohibited under section 9 of the ESA. Therefore,
the Federal action is the decision whether to issue a permit that
authorizes take, and the appropriate scope of our analysis under NEPA
includes the direct and indirect effects of the permitting decision
(i.e., authorizing take of the covered species) on the human
environment.
Comment 19: One commenter stated that the proposed regulations
indicate that the scope of authorization in section 10(a)(1) of the ESA
is limited to the take of covered species, which should mean that the
National Historic Preservation Act (NHPA) is not triggered, especially
because the permits are for non-Federal actions. The commenter
asserted, however, that the Service likely does not interpret the
proposed text this way, as doing so could cause confusion. The
commenter indicated that if we expect incidental take and enhancement
of survival permits to be an NHPA trigger, we should not say the scope
of authorization is limited to species take.
Response: Because the action of issuing a permit is a Federal
undertaking as defined in 36 CFR 800.16(y), we are subject to section
106 compliance under the National Historic Preservation Act. Clarifying
that the scope of our permit authorizes the take, not the activities
causing the take, ensures that the area of potential effect is
appropriately determined.
Comment 20: One commenter stated that the regulations should limit
section 10 enhancement of survival permits to activities that actually
enhance the survival or propagation of a species. The commenter shared
an example where capturing the animal is necessary for its own benefit
and protection and to assist its conservation in the wild. The
commenter further asserted that purposeful take that is not expected to
directly benefit the animal being taken should not be allowed under the
regulations because that activity does not enhance the survival or
propagation of the species.
Response: Any purposeful take that is authorized through an
enhancement of survival permit must directly benefit the covered
species and be necessary to provide for its conservation through
implementation of the conservation agreement. The commenter's example
is a situation where it might be appropriate for the Service to
authorize purposeful take that is necessary to implement a conservation
agreement.
Comment 21: One commenter asserted that the Service needs a means
to track take and that we should require a standardized self-reporting
duty that all parties can understand and meaningfully comply with.
Another commenter suggested we develop procedures for monitoring
compliance with incidental take permits and for tracking cumulative
take to ensure excessive take allowances are not granted.
Response: For all incidental take and enhancement of survival
permits, we require that permittees report take that occurs during
their annual reporting period. We are developing mechanisms to collect
this information when permittees submit their annual reports through
the online ePermits system, which we will incorporate into our internal
project tracking system--ECOSphere--where the data will be available to
all Service biologists for use in conservation decision-making.
Comment 22: One commenter stated that the required conservation
agreement elements do not include a section on take or assurances
provided to property owners and the regulation does not clearly
describe how these elements are incorporated into the conservation
agreement and permitting process for an enhancement of survival permit.
The commenter also asserted that we did not address the duration for
conservation agreements and requested that we define these elements and
incorporate them into the agreement or permit.
Response: The assurances for conservation agreements are included
in 50 CFR 17.22(c)(5) and 17.32(c)(5). In addition, duration of
agreements is included under Sec. Sec. 17.22(c)(4) and 17.32(c)(4).
Both assurances and the agreement duration are elements that are
included in every conservation agreement.
Comment 23: One commenter stated that the proposed changes
regarding the appropriate use of monitoring data in the renewal or
amendment process are vague. The commenter asserted that,
[[Page 26078]]
while the proposed regulation emphasizes using monitoring data to
evaluate the effectiveness of mitigation, in practice this has often
just involved monitoring a conservation crediting site. The commenter
requested, given the interest in accounting for landscape-scale effects
and the recent Presidential memo on ecological connectivity, that we
include language to encourage monitoring habitat occupancy near the
site of habitat loss whenever possible, which could include using
environmental DNA techniques. The commenter asserted that an
enhancement of survival permit for the neighboring property could be
used to justify monitoring and management of habitat to understand if a
landscape-effect due to a nearby take has occurred.
Response: We agree that information on the species and habitat
located near a plan or agreement area would be useful in an overall
assessment of the status of the species, but we cannot require that a
permittee monitor areas beyond those covered by a permit. In addition,
using the neighboring property owner provisions of an enhancement of
survival permit supported by a conservation agreement for this purpose
is not appropriate as neighboring property owners are not required to
monitor their property for the species.
Comment 24: One commenter stated that the Service's regulations
should strengthen the monitoring obligations before and after permits
are issued to ensure compliance with the ESA. The commenter further
asserted that the regulations should require the Service to assess
baseline conditions, including both available habitat and estimated
population and distribution, and independently monitor the condition of
the covered species and habitat throughout the duration of the permit.
Response: For both conservation plans and agreements, we require
that baseline conditions for the covered species be determined before
we approve the plan or agreement and issue the associated permit. In
addition, monitoring over the duration of the conservation plan or
agreement is required to determine if the mitigation or conservation
measures have been implemented and whether they are effective
(biological monitoring). Depending on the species, the baseline
determination and monitoring may include surveys for individuals to
estimate population and distribution on the enrolled property or may
only include inventorying the habitat conditions. Some species are
difficult to survey, and habitat may be used as a surrogate if
appropriate.
Comment 25: One commenter recommended as a condition of permit
issuance that we expressly require all enhancement of survival and
incidental take permittees to carry out adequate monitoring
commensurate with the scope of their activities. The commenter
suggested that, in some cases, for small, short-term habitat
conservation plans (e.g., covering a residential home on a small
property), this monitoring might be minimal; however, in all cases the
regulations should require reporting actual take of protected species.
Conversely, another commenter recommended that we not impose burdensome
monitoring requirements as conditions of enhancement of survival
permits, because such requirements are costly, deter participation, and
ultimately do not increase species conservation.
Response: Both permit types have compliance and effectiveness
monitoring requirements. These requirements are based on the covered
species and the goals and objectives of the agreements and plans. The
type and amount of required monitoring is commensurate with the
activities covered and does not go beyond what is needed to determine
whether: the plan or agreement is being properly implemented, the
biological goals for the covered species are being met, and take
authorization has not been exceeded.
Comment 26: One commenter noted that habitat conservation plan
requirements include a monitoring component to measure the
effectiveness and progress of the conservation plan in achieving its
goals (to be codified at 50 CFR 17.22(b)(1)(viii)). The commenter
noted, however, that the Service has not included language on the
appropriate scope of any compliance monitoring for a habitat
conservation plan. The commenter asserted that the original five-point
policy states, ``Monitoring measures should be commensurate with the
scope and duration of the project and the biological significance of
its effects.'' The commenter stated that including this language into
regulations will ensure that any monitoring requirements are
proportionate to the project impacts. The commenter further explained
that this additional language will ensure that monitoring programs
under habitat conservation plans will be commensurate with the duration
of the habitat conservation plan and impacts of the take.
Response: In the final rule, we added ``The scope of the monitoring
program should be commensurate with the scope and duration of the
conservation program and the project impacts.''
Comment 27: Several commenters stated that, for both quantification
of take and monitoring purposes, the Service should continue to allow
applicants to rely on surrogates (a similarly affected species of
habitat or ecological conditions) and make explicit in the final rule
that surrogate species are acceptable when biologically meaningful
results are attainable by such a method.
Response: We currently allow the use of surrogates for monitoring
purposes, depending on the species, and will continue to do so. While
we are not adding language to the regulations, we discuss the
appropriate use of surrogates in our handbooks.
Comment 28: One commenter stated that we should include more
explicit integration of climate change considerations and recommended
that we require a climate strategy section either within the goals and
objectives or its own standalone section within any agreement or
habitat conservation plan, with explicit links to how the impacts of
climate change can be addressed through adaptive management of the
agreement in question. The commenter asserted that a standalone section
would allow for applicants to properly account for and integrate
climate resiliency in their plans and agreements at the start. Another
commenter recommended that we revise the proposed definition of
``changed circumstances'' to include climate change within the examples
listed. Another commenter suggested that the adaptive management
program in the conservation plan should consider mitigation focused on
addressing climate impacts or other stressors affecting listed species.
Response: While it is important to consider the current and
possible future effects of climate change on a species, we are not
revising the regulations to include a requirement for a standalone
climate change section in a plan or agreement. We provide guidance on
incorporating climate change into plans and agreements in our
handbooks. We note that the conservation strategy and adaptive
management program in the conservation plan can include measures to
address the effects of climate change to ensure the plan meets its
biological goals and objectives.
Comment 29: Two commenters stated that the Service should have the
authority and discretion to consider and provide mitigation and
conservation credit for prior and continuing conservation measures. The
commenters asserted that the regulations should clarify that the
Service can consider and provide mitigation and conservation credit
when a plan or agreement is
[[Page 26079]]
amended to add a covered species, or when a new plan or agreement
incorporates and builds on prior and continuing conservation measures
used in existing plans and agreements for conservation of a newly
covered species on the same covered land.
Response: For enhancement of survival permits, when we evaluate the
baseline in the conservation agreement, we take into consideration the
current condition of the species and its habitat, either of which could
be attributed to prior or ongoing conservation measures. We also review
ongoing conservation when selecting the conservation measures that a
property owner will implement to determine if they will need to adopt
new conservation measures or amend current measures to achieve the net
conservation benefit. Likewise, if an enhancement of survival permit is
amended to include a new species, we will determine if any additional
conservation measures are needed to provide the net conservation
benefit for the new species.
For both enhancement of survival and incidental take permits, if a
permittee seeks an amendment to add a new species to the permit, we
must establish the environmental baseline for that species at the time
of the requested amendment through our intra-Service section 7
consultation. The prior and ongoing actions, including conservation
gained through implementation of the existing conservation plan or
agreement, would be accounted for in the baseline. The baseline will
also include the past and present impacts of all Federal, State, or
other private actions in the plan or agreement area. Therefore,
previous and on-going beneficial actions are considered when making our
enhancement of survival and incidental take permit issuance decisions.
Comment 30: Several commenters were concerned about the definition
of ``covered species,'' particularly the meaning of ``reasonable
potential to be considered for listing.'' They asserted that we did not
provide any information on what ``reasonable potential'' means or how
it will be determined, and further asserted that we are creating an
alternative approach to a listing determination that is outside the
ESA.
Response: We revised the definition of ``covered species'' in this
final rule, removing ``reasonable potential to be considered for
listing'' and replacing it with the term ``at-risk species,'' which is
defined.
Comment 31: Some commenters recommended that the Service provide
language to ensure State-managed non-listed species are not included in
the definition of ``covered species'' because that would subject State
management of these non-listed species to unacceptable levels of
uncertainty.
Response: We are not excluding State-managed species from the
definition of ``covered species.'' We work closely with State agencies
when developing conservation agreements and plans and will consider any
concerns expressed by States during that process. Furthermore, it is
the applicant's decision whether to include species not listed under
the ESA, rather than later seek an amendment if the species is listed.
Comment 32: Several commenters stated that, without a listing under
the ESA, direct and indirect regulation of non-listed species is beyond
the legal authority of the Service. Several other commenters supported
our proposal to include only non-listed species as covered species in a
plan or agreement. They stated that this change may help preclude the
listing of at-risk species and allow applicants to seek regulatory
certainty through an incidental take permit well before a species may
become listed.
Response: We clarified in the preamble that we have the authority
to issue incidental take and enhancement of survival permits for non-
listed species. This process provides more options for entities to
voluntarily be proactive and obtain regulatory certainty, allowing them
to continue their covered activities without interruption if a species
becomes listed. The ESA does not prohibit take of non-listed species.
Therefore, the take authorization through an incidental take or
enhancement of survival permit will not go into effect until that
species is listed.
Comment 33: Several commenters stated that we failed to address the
most costly and burdensome requirements for incidental take and
enhancement of survival permits. They asserted that the conservation
agreement requirements, including (a) detailed information and defined
outcomes of the conservation measures, (b) measurable biological goals
and objectives of the conservation measures, (c) the baseline condition
of the property to be enrolled, (d) the net conservation benefit
resulting from the conservation measures, (e) detailed monitoring, and
(f) the ability for the Service to include other unknown requirements
for issuance, are too onerous and costly.
Response: The requirements are to ensure that we can make the
necessary findings for issuance of the permit and approval of the
associated agreement or plan. The biological goals and objectives must
be measurable for us to determine that the conservation measures or
mitigation are achieving their purpose. The monitoring requirements are
necessary to determine if the conservation measures or mitigation are
being properly implemented and are achieving the intended result. The
purpose of a conservation agreement is to provide a net conservation
benefit to the covered species, and we must have the necessary
information, such as the baseline condition and monitoring information,
to be able to make that determination.
Comment 34: Many commenters requested that the final rule include
reasonable timeframes for application processing stating that,
otherwise, the proposed streamlining of the revised regulations will
not be realized. Several commenters suggested application processing
and permit decision timeframes comparable to those performed under
section 7 of the ESA. They further stated that, while the section 10
durations do not necessarily need to replicate those existing for
section 7 consultations, communicating expected timeframes for review
would help to ``generate and share products quickly.'' To realize the
time and cost savings benefits envisioned, one commenter stated that
implementation of this rule must be simple and straightforward for both
non-Federal applicants and Service staff alike.
Response: We will develop timelines on a project-by-project basis
based on coordination between the applicant and the Service early in
the development of the conservation plan or agreement. We recognize an
applicant's need for transparency and consistency with respect to the
Service's decision-making timelines and the importance of reliable
timelines in the overall development of a conservation plan or
agreement. We reiterate our commitment to timely review of applications
and permit decision making. We will consider whether to incorporate
general timeline goals into our handbooks.
Comment 35: In addition to deadlines for application processing and
permit decisions, many commenters requested the adoption of deadlines
for the various stages of plan and agreement negotiation, especially
for the stage related to the Service's determination on whether an
application is complete. Other commenters asserted that a lack of
deadlines causes the process to move too slowly.
Response: We are committed to timely review of applications and
permit decision making, given our resources. We will continue to
evaluate our process for determining whether an application is complete
and will
[[Page 26080]]
consider developing timelines in our handbooks.
Comment 36: One commenter suggested that we clarify permit duration
by adding a reference in the final rulemaking that states, ``including
time necessary to establish or restore habitat conditions.'' Another
commenter stated that the duration of permits language does not provide
applicants, permittees, participants, and enrollees regulatory
certainty or transparency as to the duration of a permit and stated we
should incorporate regulatory text that clarifies ``permit durations''
to provide regulatory certainty and repropose the rule to provide the
opportunity for informed comments.
Response: We find it is unnecessary to add the suggested language
because the duration of an agreement or plan already incorporates the
time needed to achieve habitat establishment or restoration as outlined
in the agreement or plan. Because each plan and agreement is unique, we
cannot apply a generic timeframe for permits and their associated
agreement or plan in the regulations. The duration of the permit must
be sufficient for the permittee to fulfill the commitments of the plan
or agreement. For instance, the duration of an enhancement of survival
permit must be long enough to achieve the net conservation benefit, and
the timeframe for this to occur must be discussed and mutually agreed
upon during the development of the conservation agreement with the
property owner.
Comment 37: Several commenters recommended that we prepare guidance
documents and templates for the respective permit applications and
conservation agreements and plans. The commenters stated that these
documents should be developed in collaboration with stakeholders,
including landowners, to ensure their usefulness and applicability.
Another commenter suggested we create a template with boilerplate
language and an online submission platform.
Response: In 2016, the National Marine Fisheries Service and the
U.S. Fish and Wildlife Service jointly finalized the Habitat
Conservation Planning and Incidental Take Permit Processing Handbook.
The draft was published in the Federal Register, and the final document
included revisions based on comments received from the public. We will
update the handbook after finalizing these regulations. A draft
handbook for conservation agreements will be developed and published in
the Federal Register for public comment. While the primary purpose is
to provide guidance to Service staff, the handbooks will also be
publicly available for stakeholder use. We will consider templates when
we develop the handbooks. We have online submission of applications
through ePermits.
Comment 38: One commenter asserted that we should provide guidance
that requires plans to have measurable goals for species recovery in
terms of both habitat quantity and quality and species population
numbers.
Response: For conservation plans, the five-point policy (65 FR
35242, June 1, 2000) and 2016 Habitat Conservation Planning Handbook
include guidance on developing appropriate biological goals and
objectives. We require measurable biological goals and objectives for
conservation strategies, if appropriate. We also require measurable
goals for conservation agreements, which are based on the covered
species. However, it may not be possible to specify measurable goals
for both habitat and species population numbers. For example, with
species where monitoring individuals is difficult, we would use habitat
as a surrogate for population numbers.
Comment 39: Several commenters asserted that we were adding new
incidental take permit issuance criteria that would explicitly allow
the Service to add terms and conditions beyond what an applicant has in
their habitat conservation plan. The commenters stated that the
requirements for additional measures usually arise at the end of the
permitting process when the applicant has completed their conservation
plan, delaying the issuance of the permit. The commenters further
stated that the Service should remove or narrow this language and work
with permittees early in the habitat conservation plan development
process where additional measures may be appropriate.
Response: In general, the Service has the authority to require
permit conditions not included in the conservation plan. Section
10(a)(2)(B)(v) of the ESA provides the authority to include as permit
conditions any other measures that are necessary or appropriate for
purposes of the plan (see section 10(a)(2)(A)(iv)). However, we did not
add new incidental take permit issuance criteria through the proposed
regulatory revisions. Rather, we incorporated the language from former
Sec. Sec. 17.22(b)(2)(ii) and 17.32(b)(2)(ii) into Sec. Sec.
17.22(b)(2)(i) and 17.32 (b)(2)(i), which may have caused confusion.
Additionally, while we have the statutory authority to require
additional measures, we rarely exercise this authority without the
consent of the applicant.
Comment 40: Several commenters supported our inclusion of a
definition for ``programmatic plan'' or ``agreement'' in the
regulations. Another commenter stated the Service should expand and
further the programmatic approach to section 10 permits and
conservation agreements and plans to address and mitigate the
significant time and cost burdens for individual landowners.
Response: We utilize programmatic agreements where appropriate and
where we have an entity that is willing to be the permit holder for the
agreement. Because this entity must have the resources to implement the
permit and associated programmatic plan or agreement, the number of
programmatic agreements and plans that have been finalized has been
limited.
Comment 41: One commenter stated that, although we included a
definition for programmatic permitting, the proposed rule did not
provide additional explanation as to the procedures that would promote
and incentivize the use of programmatic permits. Another commenter
suggested that we should propose regulatory text explaining how
programmatic habitat conservation plans and incidental take permit
processes work.
Response: Given the complexity and variability of programmatic
plans and agreements, it is not feasible to include the suggested
explanation in the regulations. Rather, the appropriate place to
explain the development process, advantages, and other details
regarding programmatic plans and agreements is in our handbooks.
Comment 42: Several commenters asserted that the regulations should
include a condition that the Service must involve State wildlife
agencies in the development and approval of conservation agreements and
conservation plans within their respective States and concurrence on
species to be covered under those agreements and plans. One commenter
requested that we consult with State agencies when establishing
baseline conditions for enhancement of survival permittees.
Response: While we decline to include a requirement in the
regulations that we must involve State wildlife agencies in the
development and approval of conservation agreements and plans, we
encourage applicants to work with State wildlife agencies during
development of agreements and plans. In addition, we often involve
States in developing conservation agreements, particularly in
discussions to determine baseline conditions and monitoring
requirements to demonstrate that the
[[Page 26081]]
agreement achieves a net conservation benefit. Likewise, we closely
coordinate with State wildlife agencies during our review of plans and
agreements. Each of our handbooks contains a section dedicated to
coordination with States, underscoring the importance of this
collaboration.
Comment 43: Some commenters were concerned that additional take
authorizations may be required by States and possibly other regulatory
entities and suggested that we include a statement in 50 CFR 17.2
indicating that take authorization provided in part 17 is for ESA-
related take only. The commenters also asserted that all sections in 50
CFR 17.22 and 17.32 for permits should have a paragraph on permit
conditions, that includes a condition to obtain, if required, State
take authorization for the State-listed species. The commenters also
stated that the Service should amend 50 CFR 17.22 and 17.32 to include
a requirement for permit applicants to obtain any necessary State
authorizations before being federally approved. In addition, several
commenters requested continued involvement in such evaluations and
recommended that the Service consider including language in the rule to
account for State involvement in the species and habitat evaluation
processes.
Response: Because not all States have a permitting process or
require permits for all species that could be covered in an enhancement
of survival or incidental take permit (e.g., insects), we decline to
include this recommendation in the final regulations. It is common
practice for the Service to recommend coordination with State wildlife
agencies, Tribes, and stakeholders as applicants are developing their
plans or agreements. The issuance of an incidental take or enhancement
of survival permit does not absolve an applicant from obtaining other
required State, Tribal, and local permits.
Comment 44: One commenter suggested that we add the following
language to Sec. 17.22(c)(6): ``Implementation of the terms of a
conservation benefit agreement must be consistent with applicable
State, local, or Tribal government laws and regulations.''
Response: We decline to add this language to our regulations, which
is unnecessary given that applicants must certify on the application
that they are operating consistent with other Federal, State, and
Tribal laws. However, we added ``Tribal'' to the definition of
``property owner,'' as follows: ``sufficient to carry out the proposed
activities, subject to applicable State, Tribal, and Federal laws and
regulations.''
Comment 45: Several commenters assert that streamlining the process
for developing conservation agreements and plans, expanding outreach
capacity both within and outside of the Service to work with
landowners, and providing dedicated support for the long-term
implementation of these agreements by nongovernmental organizations and
other third-parties are among the most significant actions that the
Service could take to expand the reach of these tools and advance
proactive conservation and species recovery on private land.
Response: The goal of our regulation changes is to streamline and
provide more clarity on permits and their associated plans and
agreements, which should increase conservation on non-Federal lands.
Outreach to communities, property owners, local and State government,
other Federal agencies, and Tribes is part of our work to promote and
increase the use of these tools.
Comment 46: Several commenters stated that, while the final rule
may help streamline procedures and encourage consistency in review and
approval of permit applications, review and approvals can be delayed
regardless of streamlining if there are insufficient personnel or
funding to assist applicants in preparation and review of applications.
The commenters did not foresee a major reduction in workload for the
Service as a result of the proposed rule changes. To ensure successful
implementation of a final rule, they requested that we allocate
dedicated funds to facilitate and support voluntary conservation
planning by supporting at least one full-time equivalent habitat
conservation planning staff person across each region to support
applicants and facilitate review of section 10 permit applications.
Response: We recognize the importance of having staff dedicated to
support the work on these permits and associated plans and agreements,
and we have staff in each of our regional offices whose primary job is
to work on enhancement of survival and incidental take permit
applications. In addition, we anticipate that the changes to the
regulations will result in more efficiencies and shorten the time it
takes for our staff to review and finalize permits, plans, and
agreements.
Comment 47: Several commenters asserted that we need more staff to
timely process incidental take and enhancement of survival permit
applications or suggested, alternatively, that we need to be more
efficient in processing permit applications, including empowering field
offices to streamline planning and permitting.
Response: Currently we delegate enhancement of survival and
incidental take permits that qualify for categorical exclusion under
NEPA (e.g., low-effect) to our field offices, thus shortening the
review process for those plans and agreements. We expect the revisions
to these regulations to make the process more efficient by clarifying
what is needed for a complete application. We will evaluate additional
ways to streamline our processes and consider incorporating those
processes in our handbooks.
Comment 48: A commenter asserted that the proposed rule only
codifies existing guidance--specifically, the 2016 Habitat Conservation
Planning Handbook, five-point policy, SHA policy, and CCAA policy--and
thus does not appear to substantively change the existing permit
application process, which is currently lengthy and burdensome. The
commenter states support for the Service codifying guidance and
standardizing practices across applications and regions, as doing so
will help resolve ambiguities and challenges arising from different
interpretation of Service regulations. However, the commenter asserted
that such codification, without further amendments, will not change the
amount of time and resources needed to obtain a section 10 permit and
will not significantly ameliorate the extent to which this investment
of time and resources discourages members of the regulated community
from applying for such permits.
Response: The purpose of the regulatory revisions to Sec. Sec.
17.22 and 17.32 is to clarify and codify long-held policy and guidance
into the regulations. We acknowledge that these revisions do not
fundamentally change the section 10 permit application processes, but
we conclude they will improve plan and agreement negotiations,
expediting the process and addressing, at least in part, the
commenter's concerns about the investment of time and resources by
applicants.
Comment 49: Several commenters indicated that the section 10
permitting is a burdensome process that involves significant time and
costs to draft, negotiate, and receive approval for either conservation
agreements or habitat conservation plans. They asserted that, although
we stated this proposal aims to clarify and simplify the process, we
did not identify or provide
[[Page 26082]]
mechanisms and support to reduce the administrative burdens and costs
that often serve as barriers to individual landowners participating in
conservation agreements or plans.
Response: We conclude that the changes and the clarifications
provided in this final rule will improve the process for developing
plans and agreements. We received several recommendations to further
improve the process that we are considering and may incorporate into
our handbooks.
Comments That Apply to Enhancement of Survival Permits Supported by
Conservation Agreements
Comment 50: One commenter suggested revising the definition of
``baseline'' by adding the following language at the end of the
definition: ``The Service shall determine baseline condition after
consulting with the landowner, using the best available science and
ecological modeling practices.''
Response: Because we work closely with landowners when developing
conservation agreements and use the best available science to select
the most appropriate methods to determine the baseline of a property,
including the suggested language in the regulations is unnecessary.
Comment 51: One commenter stated that we should clarify that take
from a potential return to baseline will factor into our issuance
determinations and that we will consider impacts to the overall
population of the covered species in our analysis. Another commenter
sought clarification to the issuance criteria at Sec. 17.22(c)(2)(ii)
and suggested adding the following language: ``When making a decision
to approve a conservation benefit agreement, the Service shall include
sufficient conditions to ensure that the overall population of the
covered species will not be reduced if the land is ultimately returned
to baseline conditions.'' The commenter asserted that this modification
makes it clear that we will fully account for take from a potential
return to baseline when we issue enhancement of survival permits,
thereby reducing potential confusion for all parties.
Response: When we issue an enhancement of survival permit under a
conservation agreement, we conduct an intra-service section 7
consultation, and part of that consultation considers the impacts of
the permitted take to the overall population of the species including
take from a potential return to baseline.
Comment 52: One commenter requested that we repropose the rule to
include information on how ``baseline conditions'' should be determined
under our new definition for ``baseline'' and to provide a cost impact
analysis for this required determination.
Response: Because each species and area covered by a conservation
agreement is unique, we cannot describe how baseline will be determined
for each species. We use the best available scientific information to
identify the appropriate method for determining baseline for a species
on a property. For some species it may be possible to conduct surveys
to count individuals, but for other species we may use habitat
conditions as the best method to describe baseline conditions. In
addition, we cannot provide a cost estimate for determining baseline
because that determination will vary by species and size and location
of the agreement area.
Comment 53: Two commenters requested that we revise the definition
of ``baseline'' by replacing ``could'' with ``currently sustains'' to
more accurately reflect existing conditions of the enrolled land. One
commenter asserted that in the definition we should focus on species
status and enrolled land conditions as they presently exist. The
commenter further asserted that, in the definition of ``baseline,'' the
addition of the word ``could'' creates uncertainty and potential
disagreement on the description of the baseline, the determination of
net conservation benefit above baseline, and the lawful return to
baseline. The commenter stated that baseline is an empirical
description of the starting condition of habitat and species range and
size, and that forecasting, estimating, or debating over habitat or
population characteristics is not needed to determine baseline. Another
commenter stated that the baseline condition of a landowner's property
should be determined using actual conditions on the ground at the time
of the agreement rather than hypothetical scenarios.
Response: To clarify that baseline condition is the starting
condition of the property to be enrolled in a conservation agreement,
we revised the definition of ``baseline'' by changing ``could'' to
``currently sustains.''
Comment 54: Another commenter recommended that we add ``across'' to
the definition of ``baseline'' to maximize participation and processing
efficiency as shown here: ``Baseline condition means population
estimates and distribution or habitat characteristics across the
enrolled land.'' The commenter asserted that the regulations should
focus on habitat conditions across the entirety of the enrolled land
rather than on specific stands or tracts.
Response: The baseline for a property to be enrolled in a
conservation agreement includes the species population estimates or
habitat evaluation for the entire property. To ensure that this concept
is clear, we added the word ``across'' to the definition of
``baseline.''
Comment 55: One commenter stated that the baseline condition should
be based on the time when the permit application is deemed technically
complete rather than at the time when the Service executes the
document.
Response: The baseline condition is based on when surveys or
habitat evaluations are completed and agreed upon by the property
owner. Baseline is part of the draft agreement available for public
comment when we announce receipt of the associated permit application
in the Federal Register; therefore, the baseline should not change
after public comments are received. In addition, the baseline is
unlikely to change between that time and when we issue the permit and
sign the agreement, because the Service rarely encounters substantial
delays in processing enhancement of survival permits after publishing
the notice of availability in the Federal Register.
Comment 56: One commenter asserted that the term ``ongoing
activities'' in the definition of ``net conservation benefit'' can be
misleading and recommended that we replace it with ``property
management actions,'' defined as actions that are conducted as part of
property operations, maintenance, modernization, or as otherwise
authorized by Service consultation. The commenter also suggested the
inclusion of ``otherwise authorized by Service consultation'' as a
means to allow other activities that are unforeseen at the time the
permit is approved but aligned with the intent of actions included in
the ``property management actions'' or similar definition.
Response: We used the term ``ongoing activities'' to limit the
activities that would be covered by an enhancement of survival permit.
``Property management actions'' would be too broad because, as proposed
by the commenter, new activities under the term ``modernization'' could
be included that would not be appropriate to be covered by the permit,
such as inclusion of a new pipeline. To issue an enhancement of
survival permit associated with a conservation agreement, the Service
must find that the covered activities in the conservation agreement
provide a
[[Page 26083]]
net conservation benefit to the covered species.
Comment 57: One commenter recommended that we modify the definition
of ``baseline condition'' and the description in the preamble to
include scenarios where habitat does not currently exist but would be
established under the conditions of a conservation agreement.
Response: We find it unnecessary to revise the definition of
``baseline condition'' to include such scenarios because that term
refers to the conditions on the property at the time the conservation
agreement is developed, not a desired future state. A property need not
have habitat for the covered species at the time the agreement is
developed. The agreement would include conservation measures aimed at
creating species habitat over the duration of the agreement.
Comment 58: One commenter asserted that the definition of
``baseline condition'' or guidance on its application should ensure
that an applicant may establish baseline conditions using a landscape
or macro framework rather than a habitat element or micro perspective.
Response: Baseline condition is established for the entire property
covered by a conservation agreement. Using a landscape approach may be
appropriate for some properties, but that approach would be determined
on a case-by-case basis.
Comment 59: One commenter encouraged us to clarify the role of an
applicant's choice to return a property to baseline condition. The
commenter requested that State agencies be thoroughly consulted,
particularly for non-listed species in which States retain a primary
jurisdictional interest, when determining the processes by which an
assessment of baseline conditions will be made, conditions monitored
over the duration of a permit and agreement and beneficial conservation
measures preserved after the end of the permit period and a return to
baseline.
Response: The regulations allow the applicant to make this choice
about returning a property to baseline. States are important partners
in species conservation, and we will involve State wildlife agencies
when we develop conservation agreements, including discussing how we
will determine the baseline condition of a property for the covered
species.
Comment 60: One commenter suggested adding a sentence to Sec.
17.22(c)(8), ``Discontinuance of permit activity,'' to clarify that a
permittee cannot return the property to baseline until the permit has
expired. The commenter suggested adding the sentence: ``A permittee may
not return their property to baseline condition until after the agreed
upon permit duration has expired.''
Response: A property owner may return the property to baseline
conditions at the end of the agreement and prior to permit expiration,
if this option is identified in the conservation agreement prior to
issuance of the permit. Alternatively, a property owner may choose no
longer to participate in the conservation agreement and can return the
property to baseline condition just prior to giving up their permit.
For any listed species covered by the agreement and permit, the permit
must still be in place for the property owner to return to baseline. We
determine that it is unnecessary to include the suggested language in
the regulations and will provide additional guidance on this concept in
our handbook.
Comment 61: Several commenters stated that the newly proposed
definition of ``net conservation benefit'' omits an important pathway
for providing net conservation benefits through maintaining existing
habitat conditions and continuing management that is beneficial to
species. They asserted that we should revise the definition of ``net
conservation benefit'' and related application criteria to provide for
maintenance as well as improvement in baseline conditions. They further
stated that we should acknowledge and incorporate the language in
existing CCAA policy that includes circumstances where the species and
habitat are already adequately managed when assessing whether the
condition of the covered species or the amount or quality of its
habitat is reasonably expected to be greater at the end of the
agreement period than at the beginning.
Response: We revised the definition of net conservation benefit to
make it clear that, in circumstances where a property already contains
suitable habitat for the species and the conservation measures include
a commitment by the property owner to maintain and manage that habitat,
the property would meet the net conservation benefit requirement and
could qualify for inclusion in a conservation agreement.
Comment 62: One commenter asserted that projects with long-term
climate benefits should be able to meet the definition of net
conservation benefit. They also stated that the definition of net
conservation benefit should be drafted in a way that acknowledges that
the climate change benefits of a project should be considered in the
assessment and supports creative mitigation solutions to climate
change.
Response: The duration of an agreement must be long enough to
provide a net conservation benefit to the covered species. While some
projects may provide long-term climate benefits, the projects may not
provide these benefits during the timeframe of a conservation
agreement. However, we could evaluate whether these types of projects
provide a specific net conservation benefit to the species on a case-
by-case basis.
Comment 63: One commenter asserted that the proposed definition of
``net conservation benefit'' fails to emphasize the need for improved
survival of the covered species. The commenter asserted that, by
focusing on improved habitat conditions, we give away assurances
without getting effective conservation. Another commenter stated that
the definition of net conservation benefit is not adequate and that we
should clarify that the specific activity authorized must benefit the
species. The commenter further stated that the definition should
clarify that net conservation benefit must be sufficient to contribute
to the recovery of covered species in the wild and increase the long-
term survivability of such species.
Response: The definition of ``net conservation benefit'' provides
for an improvement of the covered species, either through a direct
benefit to individuals (e.g., reintroduction) or by creating or
enhancing habitat. Conservation agreements provide for effective
conservation by implementing specific measures aimed to improve the
status of the species; previously issued CCAAs have been shown to
improve species status such that listing is not warranted.
Comment 64: Another commenter asserted that, while the proposed
definition of ``net conservation benefit'' refers to the species'
status, the proposed regulation considers only each covered species'
existing baseline condition on the enrolled land. The commenter stated
that this approach is too restrictive and that the regulations should
also anticipate and encourage improvements to species' existing
baseline conditions on areas impacted by covered activities, including
through spillover of recovered populations onto adjacent or other
lands.
Response: The net conservation benefit determination is made for
the property that is enrolled in a conservation agreement based on the
conservation measures that the property
[[Page 26084]]
owner agrees to implement and taking into consideration the ongoing
activities for which we authorize take through the permit. We do not
consider adjacent land or other land that is beyond the area covered by
the agreement.
Comment 65: One commenter recommended that we remove the language
``the amount or quality of its habitat'' because, in many cases,
benefits to habitat will reasonably be expected to improve the status
of the species and, where they do not, there would be no ``net
conservation benefit.''
Response: While we agree that benefits to habitat will result in
improvements to the status of the species, we are retaining this
language to make it clear that the net conservation benefit can be
achieved through habitat creation or improvement.
Comment 66: One commenter suggested that we recommend specific
conservation metrics when defining net conservation benefit and that
these metrics might include changes in habitat area, habitat
connectivity, and expected change in abundance, for example.
Response: While conservation agreements will include metrics to
monitor and determine effectiveness of the conservation measures such
as those suggested by the commenter, we did not specifically list these
in the regulations. However, we will discuss metrics related to net
conservation benefit further in our handbook.
Comment 67: One commenter suggested that, although a quantitative
target seems unworkable given the variability of species and agreements
at issue, we should include a qualitative target such as a meaningful
or substantial improvement, which could be helpful while still allowing
reasonable flexibility.
Response: We are not including the suggested language because it is
subjective and could be open to interpretation. However, we will
include more explanation on this issue in our handbook.
Comment 68: One commenter asserted that we could further clarify
the definition of ``net conservation benefit'' by adding language
specifically confirming that the improvement in condition must be
expected to result from the specific conservation measures implemented.
The commenter stated that, although it is suggested by the proposed
language, further clarification is needed to tie the improvement in
condition to the specific conservation measures. The commenter asserted
that this tie could be accomplished by inserting the phrase ``because
of the implementation of the specific conservation measures''
immediately after ``that'' the second time it appears, so that the
language would read ``that, because of the implementation of the
specific conservation measures, the condition of the covered species .
. . .''
Response: We have revised the definition of ``net conservation
benefit'' by adding the word ``conservation'' to make it clearer that
the improvements to the species' status or habitat on the enrolled
property is a result of implementing the agreed-to conservation
measures.
Comment 69: Another commenter suggested a revision to the
definition of ``net conservation benefit'' to require a showing of
improvement in the condition of species already present on the relevant
property, unless the nature of, or knowledge about, the species makes
such a showing unreasonably difficult. They suggested the following
language: ``. . . or, as appropriate for each covered species not
resident on the property or each resident species for which species
status is not determinable with a reasonable level of effort, the
amount or quality of its habitat.''
Response: We decline to add the suggested language because it is
not necessary as improvement of the species is already incorporated
into the definition and is a requirement of a conservation agreement
either by directly improving the population of the species or by
improving the habitat of the species on the property. However, further
explanation on how to determine baseline, and thus a net conservation
benefit, will be included in our handbook.
Comment 70: One commenter asserted that we need to clarify how
adverse impacts to covered species from ongoing land or water use
activities and conservation measures will be determined. They stated
that this clarification is especially important if we intend to
calculate adverse impacts and then apply them as an offset to the
benefits of a conservation agreement.
Response: The adverse impacts to the covered species from
implementation of the conservation measures or ongoing land or water
use activities would be based on the biology of the specific species.
Monitoring can help to inform this impact using species surveys or
habitat evaluation. Additionally, while implementation of the
conservation measures could have some short-term impacts, these
measures will ultimately benefit the species.
Comment 71: One commenter stated that we should indicate that net
conservation benefits are determined based on all voluntary actions by
the applicant that benefit the species, whether new or continued, and
not just new actions to be taken under the application.
Response: When we determine whether a conservation agreement meets
the net conservation benefit requirement, we look at all the beneficial
actions that the property owner is taking on their property, whether
they are continuing actions or implementing new measures. We decline to
revise the regulations to include this clarification, but we will
discuss this issue further in our handbook.
Comment 72: One commenter proposed that the neighbor requirement
for applicants under Sec. 17.22 (c)(1)(vii)) read as follows: ``A
description of the enrollment process to provide neighboring property
owners incidental take coverage under paragraph (c)(5)(ii) of this
section with an agreement to supply proof that there has been a
reasonable effort to give neighbors notice of the application, if
applicable, or any other measures developed to protect the interests of
neighboring property owners.'' Another commenter asserted that the
proposal should be revised to guarantee this protection to neighboring
landowners. The commenter stated that it could be done by changing
``may'' to ``shall'' and minimizing the burdens imposed on neighboring
landowners to obtain this protection.
Response: We decline to include the suggested addition to the
neighboring property provisions because neighboring property owner
provisions are not a requirement of a conservation agreement. The
neighboring property provision may be unnecessary in situations where
the species are not very mobile or if suitable habitat is not located
on the property adjacent to the enrolled property in the conservation
agreement. Requiring that every agreement include neighboring property
owner provisions will create unnecessary work in some cases.
Comment 73: One commenter suggested that we define neighboring
property owners based on the biology of the species that the permit
will cover and not just in regard to immediately adjacent neighboring
property owners or a neighboring property owner's proximity to the
permitholder. The comment asserted that a species-specific definition
will ensure that all ``neighbors'' within a species' range will be
covered.
Response: We find that it is not necessary to adopt this suggestion
because, when we include neighboring property owner provisions in an
[[Page 26085]]
enhancement of survival permit, we already consider the biology of the
species to help determine which properties would be appropriate to
include. For instance, it may not be appropriate to include all
neighboring property owners within the species' range because the
species' dispersal capabilities may be limited and suitable habitat may
not exist on all proximate properties.
Comment 74: One commenter supported the proposed changes that
clarified considerations for extending incidental take coverage to
neighboring property owners. The commenter noted that the proposed rule
suggests enrollment procedures for adjacent landowners should be
contained in the agreement and stated that the method of providing
incidental take coverage to neighboring lands as written is flexible
and intended to be tailored to the specific agreements and needs of
adjacent property owners. Another commenter opposed the provision
allowing the Service to authorize incidental take coverage for owners
of properties adjacent to properties covered by the conservation
agreement.
Response: Including neighboring property owner provisions is an
important concept that can help to encourage more property owners to
participate in a conservation agreement. Knowing that their neighbors
can be covered for take that might occur as a result of the species
expanding beyond the boundaries of the property enrolled in an
agreement can be an incentive for enrollment, thus increasing the
conservation for listed and at-risk species under the ESA.
Comment 75: One commenter stated that the Service should revise the
phrase in the definition of ``property owner'' from ``owners of water
or other natural resources'' to ``owners of rights to water or other
natural resources.''
Response: We agree that water and other natural resources are not
owned and have revised the regulation to ``owners of rights to water or
other natural resources.''
Comment 76: Several commenters noted that we removed ``a person
with a fee simple, leasehold, or'' from the definition of ``property
owner'' and that we did not explain the purpose or need for this
revision, or why these entities are specifically being excluded as
property owners. The commenters recommended that we specifically
include in the definition ``permit and lease holders of the enrolled
property'' as these entities may be the property managers of such
estates.
Response: We removed the specific references to a person with a
``fee simple'' or ``leasehold'' property interest to simplify the
definition of ``property owner.'' The revised definition is
sufficiently broad to include persons with fee simple or leasehold
interests. The threshold requirement to qualify as a property owner is
the legal ability to implement the agreement.
Comment 77: One commenter stated that we used the term ``enrolled
land'' multiple times in the proposed rule, but we have approved CCAAs
in the past that include other property interests, including water
rights. The commenter suggested that we clarify that those other
property interests are covered by the final regulations and requested
that we consistently refer to ``property'' throughout the rule, except
where a narrower scope is specifically intended.
Response: We have changed several references from ``enrolled land''
to ``enrolled property'' as appropriate in Sec. 17.22 in paragraphs
(c)(1)(iv), (v), and (viii), (c)(2)(ii), and (c)(4) and in Sec. 17.32
in paragraphs (c)(1)(iv), (v), (viii), (c)(2)(ii), and (c)(4).
Comment 78: Many commenters supported the proposal to combine CCAAs
and SHAs into one agreement type. Commenters stated that this change
will simplify the permit process and will also provide applicants that
had previously applied for a CCAA with the option of returning a
property to baseline conditions, which under current regulations is an
option available only to SHA applicants. Other commenters opposed
combining CCAAs and SHAs, stating that CCAAs and SHAs should have
different standards for non-listed and listed species. They asserted
that the regulations as proposed will set a higher regulatory hurdle
for conservation agreements for candidate species (meant to avoid a
listing) by formalizing requirements that are as stringent as post-
listing agreements (designed to aid in the recovery of a listed
species). The commenters stated that combining the two agreements will
make it more onerous, burdensome, and costly for applicants,
permittees, participants, and enrollees to overcome the higher
regulatory hurdles (a recovery standard) to conserve candidate species.
Response: We analyze the same factors to decide whether to list a
species as we do to decide whether to downlist or delist; we do not
have different standards for these determinations. Agreements for non-
listed species have the same requirements as for listed species: They
must provide a net conservation benefit by addressing the threats to
the species on the enrolled property or otherwise improving the status
of the species.
Comment 79: One commenter wanted to know if all programmatic
agreements established prior to a listing automatically continue post-
listing and, if so, whether property owners must enroll by a deadline,
or whether enrollment continues indefinitely. The commenter also
asserted that if enrollments continued post-listing, landowners would
not have incentives to enroll prior to listing because they could wait
until post-listing and still get the same assurances against further
restrictions on land or resource use.
Response: Programmatic agreements that are established prior to a
covered species becoming ESA-listed can continue to allow enrollment of
new property owners under the agreement post-listing. A property owner
may want to enroll prior to a species listing so that ongoing covered
activities on the property can continue seamlessly should the species
be listed. If a property owner waits until a species is listed,
enrollment will be delayed until the application is completed.
Comment 80: One commenter stated that conservation agreements, as
proposed, have the potential to reduce timeframes and resources needed
to develop and implement the agreements. However, the commenter
suggested that additional details regarding how agreements will be
executed pre- and post-listing are needed. Further, the commenter asked
for clarification about whether a conference opinion that accompanies
an enhancement of survival permit supported by a conservation agreement
prior to listing would be converted to a biological opinion upon
listing.
Response: Conservation agreements that are developed prior to a
species being listed will continue seamlessly, as outlined in the
agreement, if the species is listed. For non-listed species covered by
an agreement and permit, a conference opinion would be completed
because permit issuance is a Federal action requiring a section 7
consultation. If the species was subsequently listed under the ESA, we
would convert the conference opinion into a biological opinion.
Comment 81: One commenter stated that the proposed definition of
``goals and objectives'' is insufficient to ensure that the goals can
be met and measured.
Response: Each agreement is unique; therefore, we cannot specify
what specific goals and objectives need to be included. However, in
general, the goals and objectives need to be measurable through
monitoring and must help determine if the net conservation benefit is
being achieved. Additional guidance will be included in the handbook.
[[Page 26086]]
Comment 82: Two commenters encouraged the Service to clarify how it
will handle SHAs or CCAAs that are under development at the time this
regulation is finalized. They asserted that, given the time and
resources necessary to prepare these applications, SHAs and CCAAs that
are in the final stages of the process should not have to restart under
a new regulatory framework.
Response: We provided notice to those entities that were working on
a CCAA or SHA prior to the finalization of these regulations. The CCAAs
or SHAs that have already been noticed in the Federal Register and are
in the final stages of permitting do not have to be revised provided
they meet issuance criteria.
Comment 83: One commenter sought clarity on whether this regulation
alters our policy on candidate conservation agreements (CCAs), which do
not include an enhancement of survival permit or provide assurances.
Response: The revision to our section 10 regulations does not alter
our policy on CCAs. While we do not issue permits in conjunction with
CCAs, they remain an important conservation tool for non-listed
species.
Comments That Apply to Incidental Take Permits Supported by a
Conservation Plan
Comment 84: Many commenters expressed their support for codifying
in the regulations that incidental take permits may be issued for non-
listed species without listed species included on the permits. The
commenters stated that the provision will provide additional
flexibility to further the statutory purpose of the ESA by encouraging
voluntary conservation of species before they are listed. Conversely,
some commenters expressed concern that a provision to include only non-
listed species in incidental take permits oversteps the Service's
authority by blurring the line between State and Federal authority.
Some commenters suggested that we require concurrence or approval from
States before issuing such incidental take permits.
Response: Allowing for incidental take permits to be issued for
non-listed species does not diminish or replace the State's
authorities. Further, we will continue to encourage applicants to
include State, Tribal, and other Federal partners in the development
and implementation of conservation plans to ensure consistency with
other authorities.
Comment 85: Several commenters were confused by the proposed
language included in Sec. 17.22(b)(1)(v)(A) where it states that the
habitat conservation plan must explain the conservation measures that
will be taken to minimize and mitigate the impacts of the incidental
take for all covered species commensurate with the taking. They
interpreted this language to mean that the requirement is to fully
offset impacts to covered species, contrary to the ESA issuance
criteria because of guidance provided in the 2016 Habitat Conservation
Planning Handbook.
Response: The text at Sec. 17.22(b)(1) includes a list of
information that must be included in a conservation plan, consistent
with the requirements of section 10(a)(2)(A) of the ESA. The commenters
conflated the requirements in section 10(a)(2)(A) with the statutory
issuance criteria in section 10(a)(2)(B). For a conservation plan, the
revised regulations clarify that the applicant must describe the
measures that the applicant will take to minimize and mitigate the
impact of the taking commensurate with the taking. We use the term
commensurate to mean in proportion to. The example the commenters
referenced from the handbook is taken out of context. However, we will
reevaluate the example used during the upcoming handbook update to
reduce confusion.
Comment 86: Several commenters asserted that the rule appears to
inappropriately shift conservation plan permitting development to the
Service when ESA section 10 permits are entirely voluntary and led by
the applicant.
Response: The decision to apply for a section 10 permit is
voluntary. Once the decision is made to seek a permit, the applicant is
required to comply with the statute and regulations and develop the
plan or agreement consistent with policy and guidance. For incidental
take permits, that includes participating in negotiations with the
Service to ensure the conservation plan meets the statutory
requirements of ESA section 10(a)(2)(A)(i)-(iv). The statutory text of
the ESA requires a conservation plan to include ``such other measures
that the Secretary may require as being necessary or appropriate for
purposes of the plan.'' This language demonstrates Congress' intent to
provide the Service with the authority to require that applicants
include appropriate measures in a conservation plan and reflects an
expectation that we will work with applicants on plan development.
Comment 87: Several commenters asserted that the application
completeness standard is equivalent to determining whether the
application and its supporting plan meet the statutory issuance
criteria. They stated that this front-loading of the process gives the
Service undue leverage in negotiating the terms and conditions of an
incidental take permit and violates existing policy that the incidental
take permit application process is applicant-driven. Other commenters
suggested that, while the language does attempt to clarify when
applications are complete, it gives the Service subjective authority to
determine when an application is complete resulting in perpetual
indecision for applicants.
Response: The application process is considered applicant-driven
because it is the applicant's decision whether to seek a permit. Once
an applicant decides to seek a permit and applies for an incidental
take permit, developing a conservation plan is a prerequisite to
issuance of the permit and therefore the conservation plan is an
application requirement. Through the conservation plan, the applicant
demonstrates to the Service how the applicant intends to meet the
incidental take permit issuance criteria. For the Service to determine
that the incidental take permit application is complete, the supporting
conservation plan must include all the required information as set
forth in ESA section 10(a)(2)(A) and the regulations in Sec. Sec.
17.22(b)(1) and 17.32(b)(1) and be consistent with Service policy and
guidance. The level of detail in the conservation plan must be
sufficient for the Service to conduct our required analyses (e.g., NEPA
and ESA section 7) and to determine whether the application meets
permit issuance criteria set forth in ESA section 10(a)(2)(B). The
Service will not deem an application complete or begin processing the
application until these requirements are met. The Service's
determination that the application is complete, however, does not
guarantee that we will determine that the application meets the
incidental take permit issuance criteria. Additional guidance on this
subject will be included in the update to the handbook.
Comment 88: Many commenters suggested that we should address the
inordinate length of time required to process ESA section 10 permits,
asserting that the length of time for the Service to deem an
application complete is often one of the key complaints raised by
applicants. The commenters further asserted that we do not clearly
specify the requirements for a complete application. The commenters
stated that, in practice, an application is not complete until the
Service deems it so, which typically involves lengthy negotiations
between
[[Page 26087]]
the Service and the applicant, particularly with respect to habitat
conservation plans. They further stated that the requirements for a
complete application, as provided in the current and proposed
regulations, are not predictable. The commenters stated that the
requirements for a complete application should be clearly set forth in
the regulations and transparent to applicants.
Response: An incidental take permit application will not be deemed
complete until we have determined that the applicant's supporting
conservation plan includes all the required information as set forth in
ESA section 10(a)(2)(A) and the regulations in Sec. Sec. 17.22(b)(1)
and 17.32(b)(1) and is consistent with current policy and guidance. In
addition, the conservation plan must include a level of detail
sufficient for us to conduct our required analyses (e.g., NEPA and ESA
section 7) and to determine whether the application meets permit
issuance criteria as set forth in section 10(a)(2)(B). In addition to
providing guidance in an update to the handbook, we will also consider
developing a policy to outline a more formal process to determine
whether an application is complete, along with a potential timeline, to
provide more predictability.
Comment 89: Several commenters stated that the statute does not
contain a reference to processing complete applications and does not
give the Service the ability to deem applications incomplete and
withhold processing them. Others asserted that the Service should
instead process the application as is and formally deny the permit.
Response: An incidental take permit application and the related
conservation plan must include the necessary information required by
the statute and regulations. Only after that information is provided
can we evaluate the application and associated conservation plan. The
conservation plan must contain sufficient detail for us to determine
whether the application meets the issuance criteria set forth in ESA
section 10(a)(2)(B). Processing an incomplete application is
inefficient and ineffective.
Comment 90: Several commenters recommended that we could
incentivize participation in the incidental take permit program by
addressing disincentives related to the length and expense of the
process. The commenters asserted that we could adopt mechanisms to
resolve key areas of dispute that frequently arise during permit
negotiations and that can become very protracted and lead to
significant applicant frustration. Some commenters suggested adopting
dispute resolution processes similar to other Federal agencies or
developing an internal elevation process through the chain-of-command
within the Service to resolve disputes.
Response: We will explore options and consider developing a policy
to incorporate dispute resolution into the conservation planning
process.
Comment 91: Several commenters stated that we do not have the
authority to add permit terms not agreed to by an incidental take
permit applicant.
Response: Both the statute in section 10(a)(2)(A)(iv) and
10(a)(2)(B)(v) and the regulations in Sec. Sec. 17.22(b)(1)(xi) and
17.32(b)(1)(xi) provide the Service with the authority to add terms and
conditions, but this authority is rarely exercised without the consent
of the applicant.
Comment 92: One commenter raised concerns that we changed the
requirements for funding assurance to accounting of funding to be
consistent with the handbook. The commenter also asserted that guidance
provided in chapter 9 of the handbook includes impractical financial
analysis requirements that were added without the opportunity for
public comment.
Response: Based on lessons learned, we made this change in the
regulations to clarify that funding assurances described in the
conservation plan must include a detailed accounting of how the
applicant intends to fund plan implementation over the permit term.
Some applicants mistakenly believed that providing an assurance, which
is simply a promise of funding, was sufficient. The guidance in chapter
9 of the handbook provides many examples and possible options to meet
the funding assurance requirements, and the public was provided an
opportunity to comment. The draft Habitat Conservation Planning
Handbook was published in the Federal Register on June 28, 2016, and
requested that public comments be received by August 29, 2016 (81 FR
41986). The final handbook was published on December 21, 2016 (81 FR
93702).
Comment 93: One commenter stated that projects federalized either
through Federal funding or mechanisms similar to Federal Highway
Administration delegations should be entitled to enroll in programmatic
habitat conservation plans and take advantage of the streamlining
opportunity those plans provide.
Response: During development of programmatic conservation plans, we
encourage applicants to consider streamlining opportunities by
coordinating with other Federal and State permitting agencies to
participate in the plan. If this streamlined enrollment opportunity is
not included in an existing programmatic plan, the permittee may amend
the plan and request to amend the permit to add the activities that
were not analyzed in the original programmatic plan.
Comment 94: One commenter suggested that we include in the
regulations a requirement that all habitat conservation plans include a
determination as to whether they contribute to species recovery under
the ESA or merely avoid jeopardy.
Response: The statutory language in the permit issuance criteria in
ESA section 10(a)(2)(B) states that ``the taking will not appreciably
reduce the likelihood of the survival and recovery of the species in
the wild.'' Therefore, the statute does not place the burden of
recovery on applicants. Rather, the applicable standard is that our
issuance of the incidental take permit cannot reduce the species'
likelihood of recovery in the wild. However, in our set of findings,
which is part of the permit decision process, we may consider including
a statement explaining how our issuance of the permit contributes to
the recovery goals for the species.
Comment 95: One commenter suggested that we define ``maximum extent
practicable'' in the regulations or revise the handbook to state that
what an applicant has proposed in a habitat conservation plan
represents the most that the applicant can practicably accomplish and
thus satisfies the maximum extent practicable criteria. Another
commenter states that the maximum extent practicable standard does not
require applicants to fully offset the impacts from the taking.
Response: Chapter 9.5 of the handbook provides guidance on how the
maximum extent practicable standard can be met. The revised regulations
do not require applicants to fully offset the impact of the taking and
do not change the maximum extent practicable standard.
Comment 96: Several commenters recommended that the Service allow
research as a mitigation option for incidental take permits to
encourage additional participation in conservation plans. Other
commenters objected to allowing research as mitigation, stating that
doing so would authorize take without properly mitigating the impacts
of the taking. To address this concern, these commenters recommended
that, if research is allowed as mitigation, the regulations should
clarify that both the research and the informed conservation must be
requirements of the associated
[[Page 26088]]
incidental take permit and the mitigation must offset the impacts of
the taking, not just inform future conservation.
Response: As stated in our mitigation policy, research that is
directly linked to reducing threats or that provides a quantifiable
benefit to the species may be appropriate under certain circumstances.
Comment 97: One commenter stated that a specific reference to
``climate change'' should be added to the examples provided in the
definition of ``changed circumstances.''
Response: We added ``effects of climate change'' in the list of
examples in the definition of ``changed circumstances.''
Comment 98: One commenter stated that the Service's proposed
regulatory changes to ``unforeseen circumstances'' omits the existing
regulatory requirement that the Service cannot impose, without the
permittee's consent, additional conservation or mitigation measures
upon an incidental take permit permittee who is properly implementing
their habitat conservation plan.
Response: The revised regulations do not include revisions
regarding ``changed'' or ``unforeseen circumstances.'' We inadvertently
omitted retention of current Sec. Sec. 17.22(b)(5)(i)-(iii) and
17.32(b)(5)(i)-(iii) in the proposed rule; this final rule corrects
that error, so those paragraphs, which were missing from the proposed
rule, will be retained via this final rule.
Comments on the Rulemaking Required Determinations
The following comments pertain to our analyses in the preamble to
the proposed rule in the Required Determinations portion, in which we
addressed several statutes and Executive orders that govern the Federal
rulemaking process.
Comment 99: In regard to our determination under the Regulatory
Flexibility Act (RFA), one commenter requested that we provide to the
public for review and comment all the information developed throughout
this process that led to our decision that the proposed regulatory
revisions would not have a significant economic impact on a substantial
number of small entities.
Response: The information that we used to determine that the
regulations will not have a significant economic impact is outlined in
the proposed rule. As set forth in that document, we determined that we
were not required to conduct an RFA analysis because this rule would
not significantly change the way that we currently implement the
section 10 program or expand the reach of species protections.
Comment 100: One commenter expressed concern regarding statutory
mandates, particularly the RFA and the National Environmental Policy
Act (NEPA), asserting that we in essence exempted ourselves from
compliance. The commenter stated that an RFA analysis would have
demonstrated that many regulated entities cannot afford the permit
application process or to sustain the performance levels required to
participate in such agreements over the long term. The commenter
asserted that not performing these analyses contributes to the
Service's failure to comprehend the need for more affordable
conservation activities that can substantially contribute to species
recovery and conservation without causing financial hardship for those
who participate.
Response: We complied with all regulatory requirements in
promulgating this rule. Regarding the RFA, we are not required to
conduct an RFA analysis because we determined that this rule will not
have a significant economic effect on a substantial number of small
entities. To the extent that the regulatory revisions affect the
documents required to support a permit application, they clarify the
requirements for those documents but do not impose additional
requirements that would result in significant increased costs to small
entities. In regard to NEPA, we determined that a categorical exclusion
from NEPA requirements applies to this rulemaking action because, when
the Service processes an application for an enhancement of survival or
incidental take permit, the decision is subject to the NEPA process at
that time.
In terms of creating more affordable opportunities for individuals
to voluntarily participate in conservation, property owners can reduce
costs by participating in a programmatic agreement instead of seeking
to establish an agreement for an individual property.
Comment 101: Several commenters stated that we must complete a NEPA
analysis on the proposed rule, including issuing an environmental
assessment or environmental impact statement that analyzes the impacts
of the proposed action and alternatives, or determining that a
categorical exclusion applies to this rulemaking.
Response: As stated in the preamble to the proposed rule and also
in this final rule, we have complied with NEPA by determining that the
rule is covered by a categorical exclusion found at 43 CFR 46.210(i).
We explained this determination in an environmental action statement
that is posted in the docket for this rule.
Comment 102: In regard to our request for comments specific to the
Paperwork Reduction Act, one commenter provided recommendations
regarding clarifying the form titles for the application forms,
specifically to revise the form titles regarding applications for
amendments. The commenter was also concerned that the language for
justifying an amendment is not consistent with the No Surprises Rule.
Response: The form titles will not be revised because there are not
separate forms for amendments. Each form (3-200-54, 3-200-56, 3-200-59,
and 3-200-60) can be used either to apply for a new permit or to amend
or renew a permit as specified within Section E of each form.
Additionally, we have removed the inconsistent language from our
description of the forms.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this rule
is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 provides that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with E.O. 13563, and in particular the requirement of retrospective
analysis of existing rules to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory objectives.
Required Determinations
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act
[[Page 26089]]
(SBREFA) of 1996; 5 U.S.C. 601 et seq.), whenever a Federal agency is
required to publish a notice of rulemaking for any proposed or final
rule, it must prepare, and make available for public comment, a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of an agency, or their designee,
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
We have determined that this rule would not have a significant economic
impact on a substantial number of small entities for the following
reasons.
The rule revises the implementing regulations to clarify existing
statutory requirements that govern the Service's processing of
applications for ESA section 10(a) permits. The rule does not
significantly change the way that we currently implement the section 10
program or expand the reach of species protections. To the extent that
the revisions relate to the documents required to support a permit
application, the revisions clarify the requirements for those documents
but do not impose additional requirements that would result in
significant increased costs to small entities. Even if some increased
costs are associated with meeting requirements in the rule, we
anticipate that those costs will be offset by the revisions that
streamline and clarify the application and decision-making process,
which will save applicants and permittees time and money. Therefore, no
external entities, including small businesses, small organizations, or
small governments, will experience significant economic impacts from
this rule. Because we certify that this rule will not have a
significant economic impact on a substantial number of small entities,
a regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this rule would not ``significantly or
uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this
rule will not impose a cost of $100 million or more in any given year
on local or State governments or private entities. A small government
agency plan is not required. As explained above, small governments will
not be affected because the rule does not impose additional
requirements on any city, county, or other local municipality.
(b) This rule will not produce a Federal mandate on State, local,
or Tribal governments or the private sector of $100 million or greater
in any year; that is, this rule is not a ``significant regulatory
action''' under the Unfunded Mandates Reform Act. This rule will impose
no obligations on State, local, or Tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this rule does not have
significant takings implications. This rule does not constitute a
``taking'' of private property interests, nor will it directly affect
private property. A takings implication assessment is not required
because this rule: (1) will not effectively compel a property owner to
suffer a physical invasion of property; and (2) will not deny all
economically beneficial or productive use of the land or aquatic
resources. This rule substantially advances a legitimate government
interest (conservation and recovery of endangered species, threatened
species, and non-listed species of conservation concern) and will not
present a barrier to all reasonable and expected beneficial use of
private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this rule will have significant federalism effects and have
determined that a federalism summary impact statement is not required.
This rule pertains only to those entities voluntarily applying for a
permit under section 10 of the ESA and will not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
This rule will not unduly burden the judicial system and meets the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988. This rule clarifies the needs associated with development
of the required documents to support an application for a permit under
section 10 of the ESA.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we considered the possible effects
of this rule on federally recognized Indian Tribes. We will continue to
collaborate/coordinate with Tribes on issues related to federally
listed species and their habitats, and we will provide notification of
this rule to federally recognized Tribes prior to publication. See
Joint Secretarial Order 3206 (``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act,'' June
5, 1997).
Paperwork Reduction Act of 1995 (PRA)
This rule contains existing and new information collections. All
information collections require approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA, 44
U.S.C. 3501 et seq.). We may not conduct or sponsor, and you are not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. The OMB has reviewed and approved
the information collection requirements associated with permit
applications, reports, and related information collections associated
with native endangered and threatened species and assigned the OMB
Control Number 1018-0094 (expires 02/29/2024, and in accordance with 5
CFR 1320.10, an agency may continue to conduct or sponsor this
collection of information while the submission is pending at OMB).
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provided the general public and other Federal
agencies with an opportunity to comment on our proposal to revise OMB
Control Number 1018-0094. This input helped us assess the impact of our
information collection requirements and minimize the public's reporting
burden. It also helped the public understand our information collection
requirements and provide the requested data in the desired format.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper
[[Page 26090]]
performance of the functions of the agency, including whether or not
the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Comments that you submit in response to this proposed rulemaking
are a matter of public record. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
The Endangered Species Act (16 U.S.C. 1531 et seq.) was established
to provide a means to conserve the ecosystems upon which endangered and
threatened species depend, to provide a program for the conservation of
these endangered and threatened species, and to take the appropriate
steps that are necessary to bring any endangered or threatened species
to the point where measures provided for under the Act are no longer
necessary. Section 10(a)(1)(A) of the ESA authorizes us to issue
permits for otherwise prohibited activities in order to enhance the
propagation or survival of the affected species. Section 10(a)(1)(B) of
the ESA authorizes us to issue permits if the taking is incidental to
the carrying out of an otherwise lawful activity. ESA section 10(d)
requires that such permits be applied for in good faith and, if
granted, will not operate to the disadvantage of endangered species,
and will be consistent with the purposes of the Act.
All Service permit applications are tailored to a specific activity
based on the requirements for specific types of permits. We collect
standard identifier information for all applications for permits, such
as the name of the applicant and the applicant's address, telephone
numbers, if applicable, tax identification number, email address,
description of activity being requested under the ESA, and, after the
permit has been issued, a report (description of activity that was
conducted under that permit). Standardization of general information
common to the application forms makes the filing of applications easier
for the public and helps to expedite our review.
The information that we collect is the minimum necessary for us to
determine if the applicant/permittee meets, or continues to meet,
permit issuance requirements. Respondents submit application forms
periodically as needed. Submission of reports is generally on an annual
basis, but for some activities (such as activities associated with sea
turtles), may be on a more frequent basis, as needed (see those
specific reporting forms). This information collection request includes
minor modifications to the layout and content of the currently approved
application forms so that they:
(a) Are easier to understand and complete,
(b) Minimize the number of completed pages the applicant must
submit, and
(c) Accommodate future electronic permitting in the Service's new
ePermits System.
In addition to the application forms, permit holders must submit
the reports in accordance with their permits issued based on 50 CFR
part 17. Some Service annual reports associated with permits are in the
3-202 series of forms, each tailored to a specific activity based on
the requirements for specific types of permits. In some cases, we
developed specific information collection forms to facilitate and
standardize the reporting and review, and to facilitate development of
electronic forms and electronic reporting and retrieval of that
information.
Annual reporting of permit compliance is required in most cases
under the authority of section 10(a)(1)(A) and 10(a)(1)(B) of the ESA
and its implementing regulations in 50 CFR part 17. These reports allow
us to evaluate the proper implementation of the conservation agreement
or plan, ensure take authorization has not been exceeded, formulate
further research, and develop and adjust management and recovery plans
for the species.
The proposed revisions to existing and new reporting and/or
recordkeeping requirements identified below require approval by OMB:
(1) (REVISED) Application--FWS Form 3-200-54, ``Enhancement of
Survival Permits Associated with Conservation Benefit Agreements''--
This application can be used for a single species or multiple species.
Agreements may vary widely in size, scope, structure, and complexity,
and in the activities they address. We revised this application form to
align with the regulation revisions, which includes referencing one
``conservation benefit agreement'' instead of the two prior agreement
types, adding a question asking if the applicant requests to return to
baseline upon permit expiration, clarifying language regarding
amendments, and adding clarifying language regarding authorized agents.
(2) (NEW) Application Amendments--Enhancement of Survival Permits
(FWS Form 3-200-54)--Permittees may request amendments to a permit, or
the Service may amend a permit for just cause upon a written finding of
necessity. Amendments comprise changes to the permit authorization or
conditions. This includes, but is not limited to, an increase or
decrease in the estimated amount of take or changes in ownership of a
project. The permittee must apply for amendments to the permit by
submitting a description of the modified activity and the changed
impacts. These are considered substantive amendments and incur a fee.
Permittees do not require a new permit if there is a change in the
legal individual or business name, or in the mailing address of the
permittee. A permittee is required to notify the issuing office within
10 calendar days of such change. This provision does not authorize any
change in location of the conduct of the permitted activity when
approval of the location is a qualifying condition of the permit.
(3) (NEW) Permit Transfers--Enhancement of Survival Permits--
Permits issued under these regulations may be transferred in whole or
in part through a joint submission by the permittee and the proposed
transferee, or in the case of a deceased permitted, the deceased
permittee's legal representative and the proposed transferee.
Transferring permits does not incur a fee.
(4) (REVISED) Conservation Benefit Agreement--As part of the
application process associated with Form 3-200-54, applicants must
submit a conservation benefit agreement. A conservation benefit
agreement must include the following:
i. Conservation Measures--A complete description of the
conservation measure or measures, including the location of the
activity or activities to be covered by the permit and their intended
outcome for the covered species.
ii. Covered Species--The common and scientific names of the covered
[[Page 26091]]
species for which the applicant will conduct conservation measures and
may need authorization for take.
iii. Goals and Objectives--The measurable biological goals and
objectives of the conservation measures in the agreement.
iv. Enrollment Baseline--The baseline condition of the property or
area to be enrolled.
v. Net Conservation Benefit--A description of how the measures are
reasonably expected to improve each covered species' existing baseline
condition on the enrolled property and result in a net conservation
benefit as defined at Sec. 17.3.
vi. Monitoring--The steps the applicant will take to monitor and
adaptively manage to ensure the goals and objectives of the agreement
are met, the responsibilities of all parties are carried out, and the
agreement will be properly implemented.
vii. Neighboring Property Owners--A description of the enrollment
process to provide neighboring property owners take coverage under 50
CFR 17.22(c)(5)(ii) or 17.32(c)(5)(ii), if applicable.
viii. Return to Baseline Condition--The applicant's choice between
including authorization to return enrolled property to baseline
condition or forgoing that authorization. For applicants seeking
authority to return to baseline condition, a description of steps that
may be taken to return the property to baseline condition and measures
to reduce the effects of the take to the covered species.
ix. Additional Actions--Any other measures that the Director may
require as necessary or appropriate in order to meet the issuance
criteria in 50 CFR 17.22(c)(2) or 17.32(c)(2) or to avoid conflicts
with other Service conservation efforts.
(5) (REVISED) Application--FWS Form 3-200-56, ``Incidental Take
Permits Associated with Habitat Conservation Plans''--Those who believe
their otherwise-lawful activities will result in the ``incidental
take'' of a listed wildlife species may choose to seek a permit. The
purpose of the incidental take permit is to exempt non-Federal
entities--such as States, local governments, businesses, corporations,
and private landowners--from the prohibitions of section 9. The
permittee also has assurances from the Service through the ``No
Surprises'' regulation. We made several revisions to the application
form to be consistent with the regulations, which include clarifying
amendments and removing any language regarding implementing agreements.
(6) (NEW) Application Amendments--Incidental Take (FWS Form 3-200-
56)--Amendments to a permit may be requested by the permittee, or the
Service may amend a permit for just cause upon a written finding of
necessity. Amendments comprise changes to the permit authorization or
conditions. This includes, but is not limited to, an increase or
decrease in the requested amount of take or changes in ownership of a
project. The permittee must apply for amendments to the permit by
submitting a description of the modified activity and the changed
impacts. These changes are considered substantive and incur a fee. A
permittee is not required to obtain a new permit if there is a change
in the legal individual or business name, or in the mailing address of
the permittee. A permittee is required to notify the issuing office
within 10 calendar days of such change. This provision does not
authorize any change in location of the conduct of the covered activity
when approval of the location is a qualifying condition of the permit.
(7) (NEW) Permit Transfers--Incidental Take--Permits issued under
these regulations may be transferred in whole or in part through a
joint submission by the permittee and the proposed transferee, or in
the case of a deceased permitted, the deceased permittee's legal
representative and the proposed transferee. Transferring permits does
not incur a fee.
(8) (REVISED) Habitat Conservation Plan--As part of the application
process, applicants are also required to submit a habitat conservation
plan with their completed Form 3-200-56. A habitat conservation plan
must include the following:
i. Project Description--A complete description of the project
including purpose, location, timing, and proposed covered activities.
ii. Covered Species--As defined in Sec. 17.3, common and
scientific names of species sought to be covered by the permit, as well
as the number, age, and sex of those individuals, if known.
iii. Goals and Objectives--The measurable biological goals and
objectives of the conservation plan.
iv. Anticipated Take--Expected timing, geographic distribution,
type and amount of take, and the likely impact of take on the species.
v. Conservation Program, that explains the:
<bullet> Conservation measures that will be taken to minimize and
mitigate the impacts of the incidental take for all covered species
commensurate with the taking;
<bullet> Roles and responsibilities of all entities involved in
implementation of the conservation plan;
<bullet> Changed circumstances and the planned responses in an
adaptive management plan; and
<bullet> Procedures for dealing with unforeseen circumstances.
vi. Conservation Timing--The timing of mitigation relative to the
incidental take of covered species.
vii. Permit Duration--The rationale for the requested permit
duration.
viii. Monitoring--Monitoring of the effectiveness of the mitigation
and minimization measures, progress towards achieving the biological
goals and objectives, and permit compliance.
ix. Funding Needs and Sources--An accounting of the costs for
properly implementing the conservation plan and the sources and methods
of funding.
x. Alternative Actions--The alternative actions to the taking the
applicant considered and the reasons why such alternatives are not
being used.
xi. Additional Actions--Other measures that the Director requires
as necessary or appropriate, including those necessary or appropriate
to meet the issuance criteria or other statutory responsibilities of
the Service.
(9) (REVISED) Form 3-200-59, ``Recovery Permit Application Form''--
This application form is used to apply for a permit for any act
otherwise prohibited by section 9 for scientific purposes or to enhance
the propagation or survival of the affected species.
The data acquired from the issuance of recovery permits is valuable
to the decisions that the Service and its partners make regarding land
acquisition, land management, consultations under section 7 of the ESA,
recovery plans, and downlisting or delisting.Data from these federally
issued permits is used on a landscape level. Without recovery permits,
our basic knowledge about the abundance, stability, and resiliency of
populations, habitat use and requirements, geographic ranges, and
diseases of federally listed species would be much more limited.
Regulations at 50 CFR 13.25(a) and (b) prohibit permit transfers for
this permit type.
We revised Form 3-200-59 to fix typos, incorporate references to
ePermits, and update links to the Service website.
(10) (REVISED) Form 3-200-60, Interstate Commerce Application
Form''--This application form is used to apply for an interstate
commerce permit that allows for take otherwise prohibited by section 9
of the ESA. Interstate commerce permits authorize the
[[Page 26092]]
purchase and sale of listed species across State lines. For wildlife,
the buyer obtains interstate commerce permits are obtained by the
buyer; for plants, the seller obtains the permits. Regulations at 50
CFR 13.25(a) and (b) prohibit permit transfers for this permit type.
We revised Form 3-200-60 to fix typos, incorporate references to
ePermits, update links to the Service website, and add information in
section E (question A7) to ensure that applicants provide information
necessary for the permit decision as required by regulation.
(11) (NEW) Application Amendments (FWS Forms 3-200-59 and 3-200-
60)--The permittee may request amendments to a permit. Amendments
comprise changes to the permit authorization or conditions. Amendments
include, but are not limited to, an increase or decrease in the
estimated amount of take, changes in species or numbers of species
requested, or a change in the geographic location where take is
authorized. The permittee must apply for amendments to the permit by
submitting a description of the modified activity and the changed
impacts. These are considered substantive amendments and incur a fee. A
permittee is not required to obtain a new permit if there is a change
in the legal individual or business name, or in the mailing address of
the permittee. A permittee must notify the issuing office within 10
calendar days of such change. This provision does not authorize any
change in location of the conduct of the permitted activity when
approval of the location is a qualifying condition of the permit.
(12) (REVISED) Form 3-2530, ``California/Nevada/Klamath Basin, OR,
Recovery Permit Annual Summary Report Form''--We propose to change the
``TE'' field to ``permit number'' on each page of the form.
We also propose to renew the existing information collection
requirements identified below:
(1) Annual Reports (Enhancement of Survival Permit Associated with
Conservation Benefit Agreements)--Annual reports associated with
conservation benefit agreements are non-form requirements and are
required by Federal permitting regulations under 50 CFR 13.45, unless
otherwise specified in the permit. Reports contain information
regarding the implementation of conservation measures and the amount of
take that may have occurred during the reporting year, both of which
are essential to ensuring compliance with the permit. Permittees may
submit the information in any format they choose.
(2) Notifications (Take)--Private landowners who have an
enhancement of survival permit (and accompanying conservation benefit
agreement) must notify us if their land management activities
incidentally take a listed or candidate species covered under their
permit.
(3) Notifications (Change in Property Owner)--We issue enhancement
of survival permits to the landowners, and their name is printed on the
permit. If ownership of the property changes, this permit does not
automatically transfer to the new property owner. Therefore, we ask the
permittee to notify us if there is a change in property ownership so
that we may work with the new property owner to determine if they want
to continue the agreement and permit and then update the permit as
appropriate.
(4) Annual Reports (Habitat Conservation Plans)--Annual reports
associated with conservation plans are non-form requirements and are
required by Federal permitting regulations under 50 CFR 13.45, unless
otherwise specified in the permit. Reports contain information
regarding the implementation of the habitat conservation plan,
including carrying out the minimization and mitigation measures and the
amount of take that has occurred, both of which are essential to
ensuring compliance with the permit. Permittees may submit the
information in any format they choose.
(5) Annual Reports (Recovery and Interstate Commerce)--Annual
reports associated with recovery permits are non-form requirements,
except for a few species where there are taxa-specific OMB-approved
reporting forms. Interstate commerce permits require reports upon the
receipt of wildlife. Interstate commerce's annual sales of plants also
require reports. Both the recovery permits and interstate commerce
permits require reporting as required by Federal permitting regulations
under 50 CFR 13.45, unless otherwise specified in the permit. Recovery
permit reports contain information regarding the activities conducted
under the permit and the amount of take that has occurred, both of
which are essential to ensuring compliance with the permit. Permittees
may submit the information in any format they choose unless an OMB-
approved form exists for the species for which they are reporting;
otherwise, they may elect to use a taxa-specific form if is available.
(6) Request to Revise List of Authorized Individuals--When a new,
renewed, or amended permit is issued, the list of authorized
individuals (LAI) is typically at the end of a permit on Regional
Office letterhead. The LAI captures those expressly authorized to
perform otherwise prohibited activities on an active permit.
When a permittee requests changes to the individuals authorized on
a permit, the Field Office reviews the qualifications. It then issues
an updated standalone LAI with the new and current qualified
individuals. Issuance of a standalone LAI is considered an
administrative change to maintain an up-to-date list of those
authorized for the permit's species/activities. Since there are no
revisions to the previously authorized species or geographic localities
on the permit itself, the action is purely a streamlining measure for
the regions to manage the high volume of personnel changes without
issuing an amendment or new permit.
(7) Notification (Escape of Wildlife)--If a recovery or interstate
commerce permit authorizes activities that include keeping wildlife in
captivity, for health and safety reasons, we ask the permittee to
immediately notify us if any of the captive wildlife escape.
(8) Annual Reports Associated with Native Endangered and Threatened
Species Under the ESA--We use the following annual report forms
specific to particular species for activities associated with native
endangered and threatened species permits under the ESA. The Service
designed the forms to facilitate the electronic reporting specifically
for each species. The Service will use the reported data to evaluate
the success of the permitted project, formulate further research, and
develop and adjust management and recovery plans for the species. The
data will also inform 5-year reviews and species status assessments
conducted under the ESA.
<bullet> Form 3-202-55b, ``U.S. Fish and Wildlife Service
Geographic Area: Midwestern Bat Reporting Form'';
<bullet> Form 3-202-55c, ``U.S. Fish and Wildlife Service
Geographic Area: Southeastern Bat Reporting Form'';
<bullet> Form 3-202-55d, ``U.S. Fish and Wildlife Service
Geographic Area: Northeastern Bat Reporting Form'';
<bullet> Form 3-202-55e, ``U.S. Fish and Wildlife Service
Geographic Area: Plains/Rockies Bat Reporting Form'';
<bullet> FWS Form 3-202-55f, ``Non-Releasable Sea Turtle Annual
Report'';
<bullet> FWS Form 3-202-55g, ``Sea Turtle Rehabilitation'';
<bullet> Form 3-2523, ``Midwest Geographic Area: Freshwater Mussel
Reporting Form'';
[[Page 26093]]
<bullet> Form 3-2526, ``Midwest Geographic Area: Bumble Bee
Reporting Form'';
<bullet> Form 3-2530, ``California/Nevada/Klamath Basin, OR,
Recovery Permit Annual Summary Report Form'';
<bullet> Form 3-2532, ``U.S. Fish and Wildlife Service Geographic
Area: Alaska Bat Reporting Form'';
<bullet> Form 3-2533, ``U.S. Fish and Wildlife Service Geographic
Area: Northwestern Bat Reporting Form''; and
<bullet> Form 3-2534, ``U.S. Fish and Wildlife Service Geographic
Area: Western Bat Reporting Form''.
Copies of the draft forms are available to the public by submitting
a request to the Service Information Collection Clearance Officer using
one of the methods identified in ADDRESSES.
Title of Collection: Federal Fish and Wildlife Permit Applications
and Reports--Native Endangered and Threatened Species; 50 CFR parts 10,
13, and 17.
OMB Control Number: 1018-0094.
Form Numbers: FWS Forms 3-200-54, 3-200-56, 3-200-59, 3-200-60, 3-
202-55a through 3-202-55g, 3-2523, 3-2526, 3-2530, and 3-2532 through
3-2534.
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Individuals; private sector; and
State/local/Tribal governments.
Total Estimated Number of Annual Respondents: 5,380.
Total Estimated Number of Annual Responses: 5,380.
Estimated Completion Time per Response: Varies from 30 minutes to
2,080 hours, depending on activity.
Total Estimated Number of Annual Burden Hours: 220,660.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion for applications; annually or
on occasion for reports and notifications.
Total Estimated Annual Nonhour Burden Cost: $19,415,460 (primarily
associated with application processing and administrative fees).
On February 9, 2023, we published in the Federal Register (88 FR
8380) a proposed rule (RIN 1018-BF99) that announced our intention to
request OMB approval of the revisions to this collection explained
above and the simultaneous renewal of OMB Control No. 1018-0094. In
that proposed rule, we solicited comments for 60 days on the
information collections in this submission, ending on April 10, 2023.
Summaries of comments addressing the information collections contained
in this rule, as well as the agency response to those comments, can be
found in the Summary of Comments and Responses section of this rule, as
well as in the information collection request submitted to OMB on the
<a href="http://RegInfo.gov">RegInfo.gov</a> website. Send your written comments and suggestions on this
information collection by the date indicated in DATES to the Service
Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA
22041-3803 (mail); or by email to <a href="/cdn-cgi/l/email-protection#a7eec9c1c8f8e4c8cbcbe7c1d0d489c0c8d1"><span class="__cf_email__" data-cfemail="236a4d454c7c604c4f4f634554500d444c55">[email protected]</span></a>. Please reference
OMB Control Number 1018-0094 in the subject line of your comments.
National Environmental Policy Act
We analyzed this rule in accordance with the criteria of the
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), the
Department of the Interior regulations on Implementation of NEPA (43
CFR 46.10-46.450), and the Department of the Interior Manual (516 DM
8).
We find that the categorical exclusion found at 43 CFR 46.210(i)
applies to the regulation changes. At 43 CFR 46.210(i), the Department
of the Interior has found that the following categories of actions
would not individually or cumulatively have a significant effect on the
human environment and are, therefore, categorically excluded from the
requirement for completion of an environmental assessment or
environmental impact statement:
Policies, directives, regulations, and guidelines: that are of
an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative,
or conjectural to lend themselves to meaningful analysis and will
later be subject to the NEPA process, either collectively or case-
by-case.
This exclusion applies to this rulemaking action because, when the
Service processes an application for an enhancement of survival permit
or incidental take permit, the decision is subject to the NEPA process
at that time.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The revised
regulations are not expected to affect energy supplies, distribution,
or use. Therefore, this action is a not a significant energy action,
and no statement of energy effects is required.
Authority
We issue this rule under the authority of the Endangered Species
Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend parts 13 and 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 13--GENERAL PERMIT PROCEDURES
0
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
Subpart C--Permit Administration
0
2. Amend Sec. 13.23 by revising the section heading and paragraph (b)
to read as follows:
Sec. 13.23 Amendments of permits.
* * * * *
(b) Service amendment. The Service reserves the right to amend any
permit for just cause at any time during its term, upon written finding
of necessity, provided that the amendment of a permit issued under
Sec. 17.22(b) or (c) of this subchapter will be consistent with the
requirements of Sec. 17.22(b)(5) or (c)(5) of this subchapter and
amendment of a permit issued under Sec. 17.32(b) or (c) of this
subchapter will be consistent with the requirements of Sec.
17.32(b)(5) or (c)(5) of this subchapter.
* * * * *
0
3. Amend Sec. 13.24 by revising the section heading and paragraph (c)
introductory text to read as follows:
Sec. 13.24 Rights of succession by certain persons.
* * * * *
(c) In the case of permits issued under the regulations in this
subchapter in Sec. 17.22(b) and (c), Sec. 17.32(b) and (c), or 50 CFR
part 22, the successor's authorization under the permit is also subject
to our determination that:
* * * * *
0
4. Amend Sec. 13.25 by revising paragraphs (b) and (c) and the
introductory text of paragraph (e) to read as follows:
[[Page 26094]]
Sec. 13.25 Transfer of permits and scope of permit authorization.
* * * * *
(b) Permits issued under the regulations in this subchapter in
Sec. 17.22(b) and (c), Sec. 17.32(b) and (c), or 50 CFR part 22 may
be transferred to a successor subject to our determination that the
proposed transferee:
(1) Meets all of the qualifications under this part for holding a
permit;
(2) Has provided adequate written assurances of sufficient funding
for the conservation measures, conservation plan, or conservation
benefit agreement, and will implement the relevant terms and conditions
of the permit, including any outstanding minimization and mitigation
requirements; and
(3) Has provided other information that we determine is relevant to
the processing of the submission.
(c) In the case of the transfer of property subject to an agreement
and permit issued under Sec. 17.22(c) or Sec. 17.32(c) of this
subchapter, the Service will transfer the permit to the new owner if
the new owner agrees in writing to become a party to the original
agreement and permit.
* * * * *
(e) In the case of permits issued under Sec. 17.22(b) and (c) or
Sec. 17.32(b) and (c) of this subchapter to a State, Tribal, or local
government entity, a person is under the direct control of the
permittee where:
* * * * *
0
5. Amend Sec. 13.28 by revising paragraph (a)(5) to read as follows:
Sec. 13.28 Permit revocation.
(a) * * *
(5) Except for permits issued under Sec. 17.22(b) and (c) or Sec.
17.32(b) and (c) of this subchapter, the population(s) of the wildlife
or plant that is the subject of the permit declines to the extent that
continuation of the permitted activity would be detrimental to
maintenance or recovery of the affected population.
* * * * *
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
6. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Subpart A--Introduction and General Provisions
0
7. Amend Sec. 17.2 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (e) as paragraphs (c) through
(f); and
0
c. Adding a new paragraph (b).
The revision and addition read as follows:
Sec. 17.2 Scope of regulations.
(a) The regulations of this part apply only to endangered and
threatened wildlife and plants, except for Sec. 17.22(b) and (c) and
Sec. 17.32(b) and (c), which may apply to wildlife and plant species
that are not listed as endangered or threatened if they meet the
definition of ``covered species.''
(b) Permits authorized under this part include:
(1) Scientific purposes or enhancement of propagation or survival
permits for take associated with research, captive propagation
programs, or conservation activities to enhance and recover populations
of covered species; and
(2) Incidental take permits for take that is incidental to
otherwise lawful activities.
* * * * *
0
8. Amend Sec. 17.3 by:
0
a. Revising the definition for ``Adequately covered'';
0
b. Adding in alphabetical order definitions for ``Applicant'' and
``Baseline condition'';
0
c. Revising the definition for ``Changed circumstances'';
0
d. Adding in alphabetical order definitions for ``Covered activity'',
``Covered species'', ``Net conservation benefit'', ``Permit area'',
``Permittee'', ``Plan area'', ``Programmatic permit associated with a
conservation benefit agreement'', ``Programmatic permit associated with
a conservation plan'', and
0
e. Revising the definition for ``Property owner''.
The revisions and additions read as follows:
Sec. 17.3 Definitions.
* * * * *
Adequately covered means, with respect to species listed pursuant
to section 4 of the Act, that a proposed conservation plan has
satisfied the permit issuance criteria under section 10(a)(2)(B) of the
Act for the species covered by the plan, and, with respect to non-
listed species, that a proposed conservation plan has satisfied the
permit issuance criteria under section 10(a)(2)(B) of the Act that
would apply if the non-listed species covered by the plan were listed.
For the Service to cover a species under a conservation plan, it must
be identified as a covered species on the section 10(a)(1)(B) permit.
* * * * *
Applicant means the person(s), as defined in the Act, who is named
and identified on the application and, by signing the application,
assumes the responsibility for implementing the terms of an issued
permit. Other parties including, without limitations, affiliates,
associates, subsidiaries, corporate families, and assigns of an
applicant are not applicants or permittees unless, in accordance with
applicable regulations, an application or permit has been amended to
include them or unless a permit has been transferred consistent with
Sec. 13.25.
* * * * *
Baseline condition means population estimates and distribution or
habitat characteristics across the enrolled property that currently
sustains seasonal or permanent use by the covered species at the time a
conservation benefit agreement is executed by the Service and the
property owner, or by a programmatic permit holder and the property
owner, under Sec. Sec. 17.22(c) and 17.32(c) of this part, as
applicable.
* * * * *
Changed circumstances are changes in circumstances affecting a
species or geographic area covered by a conservation plan that can
reasonably be anticipated by the plan's developers and the Service for
which responses can be identified in a conservation plan (e.g., the
listing of new species, effects of climate change, or a fire or other
natural catastrophic event in areas prone to those events).
* * * * *
Covered activity means an action or series of actions that causes
take of a covered species and for which take is authorized by a permit
under Sec. 17.22(b) and (c) or Sec. 17.32(b) and (c), as applicable.
Covered species means any species that are included in a
conservation plan or agreement and for which take is authorized through
an incidental take or enhancement of survival permit.
(1) Covered species include species listed as endangered or
threatened.
(2) Covered species may include species that are proposed or
candidates for listing, at-risk species, or species that have other
Federal protective status. An at-risk species is a non-listed species
the status of which is declining and that is at risk of becoming a
candidate for listing under the Act; at-risk species may include, but
are not limited to, State-listed species, species identified by States
as species of greatest
[[Page 26095]]
conservation need, or species with State heritage ranks of G1 or G2.
(3) An incidental take or enhancement of survival permit need not
include a listed species.
* * * * *
Net conservation benefit means the cumulative benefit provided
through implementation of a conservation benefit agreement that is
designed to improve the existing baseline condition of a covered
species by reducing or eliminating threats, or otherwise improving the
status of covered species, minus the adverse impacts to covered species
from ongoing land or water use activities and conservation measures, so
that the condition of the covered species or the amount or quality of
its habitat is reasonably expected to be greater with implementation of
the agreement than without it. If the Service determines that the
species and habitat are already adequately managed to the benefit of
the species, a net conservation benefit will be achieved if the
property owner commits to continuing the species' management for a
specified period of time, including addressing any likely future
threats that are under the property owner's control, with the
anticipation that the population will increase, habitat quality will
improve, or both.
* * * * *
Permit area means the geographic area where the take permit
applies. The permit area must be delineated in the permit and be
included within a conservation plan or agreement.
Permittee means the named applicant who has been issued a permit
and who assumes responsibility for implementing the permit. Other
parties including, without limitation, affiliates, associates,
subsidiaries, corporate families, and assigns of a permittee are not
permittees unless the permit has been amended or transferred consistent
with Sec. 13.25.
Plan area means the geographic area where covered activities,
including mitigation, described in the conservation plan associated
with an incidental take permit may occur. The plan area must be
identified in the conservation plan.
* * * * *
Programmatic permit associated with a conservation benefit
agreement means an enhancement of survival permit issued under Sec.
17.22(c) or Sec. 17.32(c), with an accompanying conservation benefit
agreement that allows at least one named permittee to extend the
incidental take authorization to enrolled property owners who are
capable of carrying out and agree to properly implement the
conservation benefit agreement.
Programmatic permit associated with a conservation plan means an
incidental take permit issued under Sec. 17.22(b) or Sec. 17.32(b),
with an accompanying conservation plan that allows at least one named
permittee to extend the incidental take authorization to participants
who are capable of carrying out and agree to properly implement the
conservation plan.
* * * * *
Property owner, with respect to conservation benefit agreements and
plans outlined under Sec. 17.22(b) and (c) and Sec. 17.32(b) and (c),
means a person or other entity with a property interest (including
owners of rights to water or other natural resources) sufficient to
carry out the proposed activities, subject to applicable State, Tribal,
and Federal laws and regulations.
* * * * *
Subpart C--Endangered Wildlife
0
9. Amend Sec. 17.22 by:
0
a. Revising the section heading and paragraphs (b), (c), and (d); and
0
b. Removing paragraph (e).
The revisions read as follows:
Sec. 17.22 Permits for endangered species.
* * * * *
(b)(1) Application requirements for an incidental take permit. A
person seeking authorization for incidental take that would otherwise
be prohibited by Sec. 17.21(c) submits Form 3-200-56, a processing fee
(if applicable), and a conservation plan. The Service will process the
application when the Director determines the application is complete. A
conservation plan must include the following:
(i) Project description. A complete description of the project
including purpose, location, timing, and proposed covered activities.
(ii) Covered species. As defined in Sec. 17.3, common and
scientific names of species sought to be covered by the permit, as well
as the number, age, and sex, if known.
(iii) Goals and objectives. The measurable biological goals and
objectives of the conservation plan.
(iv) Anticipated take. Expected timing, geographic distribution,
type and amount of take, and the likely impact of take on the species.
(v) Conservation program, that explains the:
(A) Conservation measures that will be taken to minimize and
mitigate the impacts of the incidental take for all covered species
commensurate with the taking;
(B) Roles and responsibilities of all entities involved in
implementation of the conservation plan;
(C) Changed circumstances and the planned responses in an adaptive
management plan; and
(D) Procedures for dealing with unforeseen circumstances.
(vi) Conservation timing. The timing of mitigation relative to the
incidental take of covered species.
(vii) Permit duration. The rationale for the requested permit
duration.
(viii) Monitoring. Monitoring of the effectiveness of the
mitigation and minimization measures, progress towards achieving the
biological goals and objectives, and permit compliance. The scope of
the monitoring program should be commensurate with the scope and
duration of the conservation program and the project impacts.
(ix) Funding needs and sources. An accounting of the costs for
properly implementing the conservation plan and the sources and methods
of funding.
(x) Alternative actions. The alternative actions to the taking the
applicant considered and the reasons why such alternatives are not
being used.
(xi) Additional actions. Other measures that the Director requires
as necessary or appropriate, including those necessary or appropriate
to meet the issuance criteria or other statutory responsibilities of
the Service.
(2) Issuance criteria. Upon receiving an application completed in
accordance with paragraph (b)(1) of this section, the Director will
decide whether a permit should be issued. The Director will consider
the general issuance criteria in Sec. 13.21(b) of this subchapter,
except for Sec. 13.21(b)(4). In making a decision, the Director will
consider the anticipated duration and geographic scope of the
applicant's planned activities, including the amount of covered
species' habitat that is involved and the degree to which covered
species and their habitats are affected. The Director will issue the
permit if the Director finds:
(i) The taking will be incidental to, and not the purpose of,
carrying out an otherwise lawful activity.
(ii) The applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of the taking.
(iii) The applicant will ensure that adequate funding for the
conservation plan implementation will be provided.
(iv) The applicant has provided procedures to deal with unforeseen
circumstances.
(v) The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild.
[[Page 26096]]
(vi) The measures and conditions, if any, required under paragraph
(b)(1)(xi) of this section will be met.
(vii) The applicant has provided any other assurances the Director
requires to ensure that the conservation plan will be implemented.
(3) Permit conditions. In addition to the general conditions set
forth in part 13 of this subchapter, every permit issued under the
regulations in this section will contain terms and conditions that the
Director deems necessary or appropriate to carry out the purposes of
the permit and the conservation plan including, but not limited to,
additional conservation measures, if any, that may be required pursuant
to paragraph (b)(1)(xi) of this section, specified deadlines, and
monitoring and reporting requirements deemed necessary for determining
whether the permittee is complying with those terms and conditions. The
Director will rely upon existing reporting requirements to the maximum
extent practicable.
(4) Permit duration and effective date. In determining the duration
of a permit, the Director will consider the duration of the activities
for which coverage is requested; the time necessary to fully minimize
and mitigate the impacts of the taking; and uncertainties related to
the impacts of the taking, success of the mitigation, and external
factors that could affect the success of the conservation plan.
(i) Permits issued under this paragraph (b) become effective for
listed covered species upon the date the permittee signs the incidental
take permit, which must occur within 90 calendar days of issuance. For
non-listed covered species, the permit's take authorization becomes
effective upon the effective date of the species' listing provided the
permittee signed the permit within 90 calendar days of issuance and has
properly implemented the conservation plan.
(ii) The permit expires on the date indicated on the face of the
permit.
(5) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (b)(5) apply
only to incidental take permits issued in accordance with paragraph
(b)(2) of this section where the conservation plan is being properly
implemented and the permittee is properly complying with the incidental
take permit. The assurances apply only with respect to species covered
by the conservation plan. These assurances do not apply to Federal
agencies or to incidental take permits issued prior to March 25, 1998.
The assurances provided in incidental take permits issued prior to
March 25, 1998, remain in effect, and those permits will not be
revised.
(i) Changed circumstances provided for in the plan. If additional
conservation and mitigation measures are deemed necessary to respond to
changed circumstances and were provided for in the plan's operating
conservation program, the permittee will implement the measures
specified in the plan.
(ii) Changed circumstances not provided for in the plan. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and were not provided for in the
plan's operating conservation program, the Director will not require
any conservation and mitigation measures in addition to those provided
for in the plan without the consent of the permittee, provided the
Director determines that the plan is being properly implemented.
(iii) Unforeseen circumstances. (A) In negotiating a response to
unforeseen circumstances, the Director will not require the commitment
of additional land, water, or financial compensation or additional
restrictions on the use of land, water, or other natural resources
beyond the level otherwise agreed upon for the species covered by the
conservation plan without the consent of the permittee.
(B) If additional conservation and mitigation measures are deemed
necessary to respond to unforeseen circumstances, the Director may
require additional measures of the permittee where the conservation
plan is being properly implemented, but only if such measures:
(1) Are limited to modifications within conserved habitat areas, if
any, or to the conservation plan's operating conservation program for
the affected species; and
(2) Maintain the original terms of the conservation plan to the
maximum extent possible.
(3) Additional conservation and mitigation measures will not
involve the commitment of additional land, water, or financial
compensation, or additional restrictions on the use of land, water, or
other natural resources otherwise available for development or use
under the original terms of the conservation plan, without the consent
[…truncated; see source link]Indexed from Federal Register on April 12, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.