[Federal Register: November 2, 2007 (Volume 72, Number 212)]
[Notices]
[Page 62258-62264]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no07-69]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Notice of
Availability for Draft Recovery Crediting Guidance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of a draft guidance document issued to promote
implementation of the Endangered Species Act. The document describes a
crediting framework for Federal agencies in carrying out recovery of
threatened and endangered species. The text of the guidance is included
in this notice. Under the draft guidance, Federal agencies could show
more specifically how adverse effects of agency activities to a listed
species are offset by beneficial actions taken elsewhere for that
species. The combined effects of the adverse and beneficial actions
would have to provide a net conservation benefit to the species. We
solicit comment from all interested parties on the contents of the
draft guidance and likely effects of its implementation.
DATES: Comments from all interested parties on the draft guidance
document must be received on or before December 3, 2007.
ADDRESSES: The draft guidance may be downloaded from our Web site at
http://www.fws.gov/endangered/policy/oct.2007.html. To request a copy
of the draft guidance, write to U.S. Fish and Wildlife Service, 420
ARLSQ, Washington, DC 20240, Attention: Recovery Crediting; or call
703/358-2171. You may also send an e-mail request to
recovery_crediting@fws.gov. Specify whether you wish to receive a hard copy by
U.S. mail or an electronic copy by e-mail.
Send comments by any one of the following methods. See ``Viewing
Documents'' and ``Public Comments Solicited'' under SUPPLEMENTARY
INFORMATION for important information.
Mail: U.S. Fish and Wildlife Service, 420 ARLSQ,
Washington, DC 20240, Attention: Recovery Crediting.
Hand Delivery/Courier: Division of Consultation, Habitat
Conservation Planning, Recovery, and State Grants, Room 420, 4401 North
Fairfax Drive, Arlington, VA 22203-1601.
E-mail: recovery_crediting@fws.gov. Include ``Recovery
Crediting comments'' in the subject line of the message.
Fax: 703/358-2175. Include ``Recovery Crediting comments''
in the subject line.
FOR FURTHER INFORMATION CONTACT: Direct all questions or requests for
additional information about the draft guidance to Dr. Richard L.
Sayers; Division of Consultation, Habitat Conservation Planning,
Recovery, and State Grants; U.S. Fish and Wildlife Service; 420 ARLSQ;
Washington, DC 20240 (703/358-2171). Individuals who are hearing-
impaired or speech-impaired may call the Federal Relay Service at 1-
800-877-8337 for TTY assistance, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Background
The ultimate goal of the Endangered Species Act of 1973, as amended
(ESA) (16 U.S.C. 1531 et seq.), is the recovery of endangered and
threatened species and the ecosystems on which they depend. In
administering the recovery provisions of the Act, the Service
collaborates with many partners, including Federal, State, and local
agencies, Tribal governments, conservation organizations, the business
community, and private landowners.
Effective recovery planning and implementation depend in part on
creative processes and agreements with Federal partners as well as
other non-Federal partners in community-based recovery efforts.
Examples of innovative conservation tools under the ESA include Safe
Harbor Agreements, Habitat Conservation Plans, Recovery Permits, and
Conservation Banks. The ultimate success of conservation and recovery
of endangered and threatened species depends on a variety of
innovations, such as these, that may be used in concert with one
another or alone. We expect Recovery Credit Systems to complement them
further. Additional information concerning these tools is available
through the sources listed above under ADDRESSES.
The recovery credit approach provides Federal agencies with an
additional recovery tool developed using existing authorities. As
described below, this tool was initially established in Texas to allow
Fort Hood Military Reservation to accrue credits for conservation
measures that it arranged by contract with neighboring landowners. The
arrangement we developed with Fort Hood can be applied by other Federal
agencies which may obtain credit for advancing the recovery of a listed
species, and this credit may be expended, or debited, to offset
potential adverse effects of future actions. A recovery crediting
system can allow a Federal agency to accrue credit for recovery actions
in advance of effects resulting from any specific action with adverse
effects. We expect this process to increase incentives for Federal
agencies to use their authorities to further the purposes of the ESA.
The Service recognizes that recovery crediting is a mechanism with
broad potential application. The Service may expand recovery crediting
to entities other than Federal agencies or employ additional methods
for Federal agencies. That is, we may be able to use credits as a
measure of the benefit of conservation actions taken on Federal lands
and we may consider other credit trading systems, beyond conservation
banks, for landowners who take conservation actions on their own land
or other private lands. We invite comment on how these or other
arrangements may be provided for by this guidance and how these or
other arrangements may be provided for by future guidance.
Viewing Documents
The complete file for the recovery crediting guidance as well as
the comments and materials we receive are available for inspection, by
appointment, during normal business hours at the Division of
Consultation, Habitat Conservation Planning, Recovery, and State
Grants, Room 420, 4401 North Fairfax Drive, Arlington, VA 22203-1601.
Draft Guidance
The text of the draft guidance follows.
Draft Guidance on Recovery Crediting for the Conservation of Threatened
and Endangered Species
I. Introduction
A. Purpose and Scope of Guidance
This document is intended to provide guidance on the development,
management, and use of recovery credits as a measure for mitigating
adverse effects to and contributions to the recovery of species listed
as threatened or endangered under the Endangered Species Act of 1973,
as amended (ESA). The guidance should assist Service personnel in
determining the applicability of recovery credits for the conservation
needs of a species, fulfill the purposes of the ESA, and provide
consistency in the establishment, management, and use of recovery
credits. For more detailed guidance and information on various other
recovery programs, we included a list of helpful documents in section
VII of this guidance. These documents will
[[Page 62259]]
help the reader have a more complete understanding of recovery programs
as a whole.
Recovery crediting is an optional process for Federal agencies to
use their authorities for the conservation of listed species. Recovery
credits can provide an additional means of implementing ``conservation
measures,'' commonly offered by Federal agencies to offset effects to
listed species resulting from Federal actions. As noted in the
Service's Consultation Handbook, ``When used in the context of the Act,
`conservation measures' represent actions pledged in the project
description that the action agency or applicant will implement to
further the recovery of the species under review.'' For further
discussion of conservation measures, see Endangered Species
Consultation Handbook, p. 4-18. In a recovery crediting system, the
action agency would present credits as part of its project description.
A pledge represented by a credit must be a legally binding commitment
such as a contract with a private landowner.
Some potential benefits of a recovery crediting system include (1)
better and more cost effective contributions to recovery through agency
activities; (2) more exact analysis; and (3) increased predictability
for all parties. The use of recovery credits as a conservation tool
should be closely evaluated for each species or group of species, and
may not be applicable in some situations. In other cases, recovery
credits may be a valuable tool in advancing the recovery of a species.
This guidance is general in nature, as each process developed for
using recovery credits will differ based on a variety of circumstances.
A recovery crediting system should be tailored to the specific
circumstances under which it would be applied; ideally it should be
based on the relevant recovery plans and, when recovery plans are
lacking or inadequate for the design of a recovery credit system,
should rely on other Service-approved documents (see ``B. Planning and
Development Phase'' below for examples). Recovery credit systems may
complement mitigation tools and conservation programs currently
available, such as conservation banking. This guidance also does not
attempt to closely define or assign roles to the agencies and other
participants in a recovery crediting system; we anticipate that these
will vary to some degree in response to the circumstances surrounding
particular systems.
B. Background
Effective recovery planning and implementation for listed species
require creative processes, including recovery actions by Federal land
managing agencies with adjacent landowners, local communities, Tribes,
States and other Federal agencies.
The concept of recovery credits was developed in Texas to allow the
Department of Defense (DoD) to receive credit for conservation measures
being implemented by Fort Hood Military Reservation. Fort Hood, which
is home to the largest known population of the endangered golden-
cheeked warbler within its breeding range, carries out conservation
measures with neighboring landowners in an effort to offset adverse
effects that may result from future on-base military readiness
activities. In exchange for implementing recovery actions, DoD
requested that these actions be considered for ``banking'' to offset
effects attributable to training activities.
Although the Fort Hood example is very specific and limited in
scope, the general concept can be applied more broadly: Federal
agencies may obtain credit for conservation actions undertaken on non-
Federal lands to advance the recovery of listed species, and this
credit may be expended, or debited, to offset potential adverse effects
of future actions. In other words, Federal agencies may ``bank''
recovery credits in advance in a particular recovery crediting system,
and apply those credits at a later time to the analysis of an agency
action. This process can add an incentive for Federal agencies to use
their authorities to further the purposes of the ESA.
C. What Is a Recovery Credit?
A recovery credit is a quantifiable unit of measure sanctioned by
the Service representing a contribution to the recovery of a species
listed under the ESA. For example, in its simplest form, one credit
could equal a specified number of acres of habitat or the acreage
necessary to support one nest of the target species. Recovery credits
should be based on a commitment to implement recovery actions outlined
in a particular species' recovery plan or alternative Service-approved
document. Each recovery credit, therefore, may be considered to be part
of recovery implementation leading towards the downlisting or delisting
goals of a threatened or endangered species, taking into account the
debits that have occurred.
A recovery crediting system is a specific program established to
provide recovery actions on non-Federal lands for specific species
while creating a ``bank'' of credits that a Federal agency may use to
offset the effects of its actions. That is, the Federal agency may
develop and store credits to be used at a later time to offset
particular adverse effects of its actions. The overall system must
provide a net benefit to the conservation of covered species, as
determined by the Service using relevant recovery plans or alternative
Service-approved documents. Under this policy, only Federal agencies
may apply recovery credits to the effects of their proposed actions,
but the system is similar in principle to conservation banking and
habitat conservation plans. As noted above, however, we seek comments
whether this policy may be expanded so that States, landowners, tribes,
and other non-Federal entities may accrue credits for contributions to
recovery.
Recovery credits must be realized to create a ``bank'' of credits
before they can be used to compensate for adverse effects to listed
species. Unlike the situation with conservation banks, the recovery
crediting system may be used for either permanent or temporary effects.
However, the positive effects of the credits may be temporary (e.g.,
secured by a term contract) only if the negative effects to be offset
are also temporary and, further, if the accounting function of the
recovery credit system ensures that benefits of the credits are
achieved in a way that actually offsets negative effects. The recovery
actions represented by credits must take place within a geographic area
that is biologically appropriate to offset the adverse effects, such as
a recovery unit.
II. Guidance Considerations
A. Authorities
The ESA provides the framework for this guidance. The ESA's stated
purposes include providing ``* * * a means whereby the ecosystems upon
which [listed] species depend may be conserved * * *'' and ``* * * a
program for the conservation of such [listed] species * * *.'' Under
section 3 of the ESA, conservation is defined as using ``* * * all
methods and procedures which are necessary to bring any [listed]
species to the point at which the measures provided pursuant to [the
ESA] are no longer necessary.'' Within the context of this guidance,
these definitions help determine and evaluate appropriate conservation
measures and benefits. Further, recovery planning is addressed under
section 4(f) of the ESA, where provisions for the development of
[[Page 62260]]
recovery plans for the ``conservation and survival of [listed]
species'' are provided. A recovery plan is one of the most important
tools to ensure sound decision-making throughout the recovery process.
Section 7(a)(1) of the ESA requires that all Federal agencies `` *
* * in consultation with and with the assistance of the [Service],
utilize their authorities in furtherance of the purposes of [the ESA]
by carrying out programs for the conservation of [listed species].''
There is broad discretion for Federal agencies to determine the
appropriate methods for implementation of section 7(a)(1). One possible
method for agencies to utilize their authorities for the conservation
of the species is through this recovery crediting system.
Establishing a recovery crediting system that results in a net
conservation benefit to a listed species would contribute to that
species' recovery. That is, the status of the target species will
improve because, overall, a net conservation benefit must be sufficient
to contribute to the recovery of the target species. Of course, each
Federal agency will have to balance their authorities, statutory
obligations and missions to determine if this policy is appropriate or
viable for their purposes. For example, a Federal agency will have to
determine if it has authority to acquire interest in non-Federal lands.
B. Goals and Objectives
The goal of a recovery crediting system is to enhance the ability
of Federal agencies to promote the recovery of listed species on non-
Federal land and offset adverse effects to listed species from proposed
actions. Objectives are (1) to produce a net conservation benefit for
the target species that advances its recovery, (2) to increase the
flexibility of Federal agencies to accomplish their missions while
meeting their requirements under the ESA, and (3) to promote effective
Federal/non-Federal partnerships for species recovery.
In order to meet the first objective, the standard for establishing
recovery credits should be implementing actions within an approved
recovery plan or other Service-approved document (such as a
conservation strategy or framework) that specifically addresses the
major threats identified for a species. An important element of any
recovery crediting system is the implementation of one or more specific
tasks included in a species' recovery plan or an alternative Service-
approved document necessary to meet downlisting or delisting criteria.
Providing credits for recovery tasks allows Federal agencies to work
together with other entities to more effectively use conservation
measures in achieving net benefits that contribute to recovery, rather
than simply addressing on-site effects of particular projects. When it
is possible to foresee the utility of a recovery crediting system
during the preparation of a recovery plan, authors of a plan should
incorporate elements of the system explicitly in the plan.
C. Principles of Recovery Crediting
Simply put, the recovery credit system is: (1) The development and
accrual of credits, which would accomplish recovery tasks and have a
net conservation benefit for the target species; and (2) A subsequent
Federal action, which uses (debits) some portion of the credits, as
part of the Federal action to offset adverse effects.
Federal agencies can employ a recovery crediting system to
accomplish recovery tasks as well as offset the adverse effects of
their actions. Although Federal agencies with appropriate authorities
may also purchase credits in a conservation bank or employ other
mitigation or conservation measures, a Federal Agency may want to
establish a system specific to its needs. Recovery crediting works
within the existing framework of the ESA and its implementing
regulations. This guidance is intended to assist in the early stages of
planning and development of a proposed recovery crediting system. While
no two crediting systems are likely to be identical, this guidance
serves to address fundamental principles that would apply to all
situations.
The general principles of establishing a recovery crediting system
include:
The Recovery Crediting Process
Information gathering and analysis;
Planning and credit development phase; and
Consultation on the credit accrual process (may be
combined with the consultation on the debiting process)
The Recovery Debiting Process
Debit development phase;
Programmatic debiting consultation; and
Project specific consultation under programmatic
consultation.
Project Specific Application
Project specific consultation under programmatic
consultation; and
Actual debits of the credits.
While these bullets are based on multiple consultations, the
Service believes that consultation can be achieved in many cases
through a two-step consultation process: (1) A programmatic
consultation to establish the recovery credit and debiting process and
(2) a project specific consultation.
D. Coordination Process
The Service has neither the resources nor the authorities to
implement many, if not most, recovery actions. Collaboration with a
wide variety of potential stakeholders is essential for the
implementation of recovery plans. An appropriate recovery crediting
system can assist the Service, other Federal agencies, and their
partners to achieve more effective implementation of recovery plans.
The Service and the Federal action agency will coordinate to ensure
that the crediting system complies with all applicable laws. The
Service and the Federal action agency should coordinate to ensure that
the crediting system complies with all applicable laws. In particular,
action agencies and the Service may need to review laws relating to
privacy such as the Freedom of Information Act (``FOIA'') and the
Privacy Act. Further, depending on the system used to create the
recovery credits, action agencies and the Service may need to review
the Federal Advisory Committee Act (``FACA''). The National
Environmental Policy Act (``NEPA'') may be a relevant consideration as
well. Service employees can consult with their appropriate solicitor's
office for more specific advice with regard to these laws.
The Service will coordinate with appropriate Federal and State
partners, and we will encourage State and local entities, both
governmental and non-governmental, to participate on the various
workgroups and committees formed under the recovery crediting system
that will be central to each process involved. For example, a local
scientific committee may be established to assist the Service in
defining recovery credits. While accrued recovery credits are only used
by the Federal agency, the accrual process (as described below) is the
key to success and should include participation by whatever non-Federal
entities are appropriate.
III. Recovery Crediting Process
A. Information Gathering and Analysis Phase
This phase involves the identification of threats and the
conservation actions needed to address those threats. Generally, the
species' recovery plan will provide a framework for analysis. This
analysis establishes the means by which a credit in a recovery
crediting system will be measured and accounted for. Information
gathering and analysis
[[Page 62261]]
involves the compiling of available information sources, identifying
data gaps, and evaluation of target species. As stated above, a central
element to defining a recovery crediting system is coordination with
appropriate Federal and State partners, as well as interested local and
non-governmental entities.
Within this phase, two important issues should be addressed: (1)
Evaluation of the conservation needs of the target species, and (2)
determination whether a recovery crediting system is feasible based on
the conservation needs of the listed species. Critical to both issues
is the ability to evaluate measurable conservation benefits to the
target species. Recovery crediting systems will vary in details, and
some listed species may not be appropriate for inclusion in a credit
system based on their conservation needs. Examples may include:
Species with poorly understood threats,
Species for which even minimal incidental take is likely
to result in a jeopardy determination,
Species with recovery plans that only provide interim
objectives due to a lack of information necessary for recovery, or
Species for which credits cannot easily be valued due to
the nature of threats (e.g., a local endemic threatened by impoundment
of a river).
B. Planning and Development Phase
This phase uses the results of the information gathering and
analysis to establish in detail what constitutes a credit. As in other
conservation programs, the planning and development phase is likely to
be the most important and time-consuming part of the process. Although
debiting of credits will not come into play until after the credits are
established, the debiting must be considered in the credit development
phase in order to meet the standard of a net conservation benefit. As
part of the planning process, Federal agencies may identify future
needs, locations of future projects, types of future projects, and
associated project activities. Values may be assigned to different
tasks within a recovery plan or alternative Service-approved planning
document based on priority, and the use of debits may be limited
depending on the needs of the species' recovery. In addition, the
recovery crediting system must integrate monitoring and reporting of
both accrual and debiting of credits.
Any recovery crediting system should address the threats that
caused the species to be listed, advance the conservation goals of the
species and must be based on sound scientific principles. An important
part of the identification of credits is to first identify the threats
to the species and measures to remove or ameliorate those threats to
establish a conservation framework for the species. When conservation
goals for the species have been established, the Service will be able
to identify the appropriate unit of measure to establish a credit. The
connection between threat, conservation measure, and credit must be
transparent. That is, the system must demonstrate the relationship
between the conservation value of the conservation measure as it
applies to the credit.
As stated above, in instances where a recovery plan is not
specific, is not available, or is outdated, the Service may consider
other means to establish recovery crediting. We will use information we
determine represents the best available scientific information on the
needs of the species. One option may be to develop a local step down
approach or strategy to address the needs of a species. Other documents
that may be useful in this regard include a recovery outline, a 5-year
status review conducted by the Service, State recovery plans, final
listing rules, and State Wildlife Action Plans.
Credits should be valued based on recovery tasks, or analogous
measures, available to a Federal agency. This phase will develop values
to be assigned to recovery tasks, ensuring that a net conservation
benefit is realized for the target species. Credit values are based
upon achieving measurable objectives, and higher priority recovery
tasks would generally receive more credit than lower priority ones.
Ranking threats may be accomplished among or within tasks in a recovery
plan. For example, various Federal conservation programs use a project
selection process based on several considerations. Higher value (i.e.,
more credit) is typically placed on potential projects that:
Preserve long term habitat.
Address high priority conservation needs.
Are larger in size (i.e., habitat size or quality).
Are adjacent or in proximity to public lands or other
permanently protected areas.
Target a specific geographic focus area (e.g., recovery
unit).
Benefit multiple species.
Establish corridors to accommodate migration or connect
fragmented habitat.
In this phase, the temporal nature of potential effects on or needs
of the species may be analyzed. Many species require active management
(e.g., invasive species control, prescribed fire, etc.) or public
outreach to contribute to recovery or research to support recovery.
Thus, some credits may be temporary in nature, provided the action
meets the conservation needs of the species. Temporary credits could be
used to offset temporary adverse effects in appropriate situations that
still allow a net conservation benefit. For example, many
transportation and linear utility projects require temporary workspace
for construction, which is later returned to pre-construction
conditions. An agency could accrue credits for the restoration and
temporary protection of degraded habitat to mitigate for habitat that
has temporary adverse effect, with the duration of credit based on
benefits achieved at the restored site and eventual restoration of the
affected site.
In its simplest form, a single Federal agency would identify a
recovery action(s) for establishment of a recovery crediting system.
For example, a recovery plan may call for the permanent preservation of
a viable population in a particular recovery unit. A Federal agency may
identify that need, and develop a process for accruing credits through
conservation easements that would meet that objective of the recovery
plan (preserving the viable population). Credits reflecting habitat
protection or restoration would be considered to be banked when
conditions on the ground fully reflect the recovery goal supported by
the credits. More complex crediting systems may involve multiple
Federal agencies and may assign credits to several or all tasks within
a recovery plan. In either case, a single Federal agency would be the
holder of credits. Whenever possible, other partners should be included
in the development process (e.g., State agencies, non-governmental
organizations, etc.), and they may play a major role in implementing
the credit accrual process.
Finally, in the development phase, it is important to address the
transferability of accrued credits. Circumstances may arise in which a
Federal agency may opt to sell or transfer banked credits to another
agency. These situations should be considered early and be included in
the crediting process, but may be defined in greater detail within the
debiting process.
C. Consultation on Credit Accrual Phase
Upon completing the development of a proposed crediting process the
Federal action agency will consult under section 7 of the ESA. Thus,
the use of a proposed crediting system would be a
[[Page 62262]]
discretionary Federal action that ``may affect'' a listed species,
which requires section 7 consultation. For the process developed to
accrue credits, the net effect on the target species should be
beneficial. Most credit accrual processes will be addressed through
informal consultation, concluding with a ``not likely to adversely
affect'' concurrence letter from the Service. (As noted above, this
consultation could be part of a programmatic consultation.) In these
cases, the Service will evaluate all potential effects of the credit
accrual process and, if it is determined that the effects would be
insignificant, discountable, or completely beneficial, provide an
appropriately detailed rationale for the concurrence. In some
instances, temporary adverse effects may be necessary to achieve the
maximum conservation benefit to the target species. For example, a
survey may involve some level of taking of a listed species. In these
cases, it may be necessary to consult formally on the credit accrual
process, if it is anticipated that incidental take may occur as a
result of credit acquisition. Alternatively, a Federal agency may
consult on the entire recovery credit system, covering accrual and
debiting in one programmatic consultation.
As discussed above, although a Federal agency needs to consider how
credits will be debited while determining how they will be accrued,
once the agency establishes a recovery crediting system through the
section 7 consultation process, a Federal agency may begin accruing
credits through the procedures outlined in the plan.
IV. Recovery Debiting Process
A. Debit Development Phase
This phase establishes the standards according to which credits
will be used. This phase may be conducted separately or concurrently
with the credit accrual planning and development. An advantage of
considering crediting and debiting at the same time is that a better
match may be achieved between the credits accrued and the debiting
needs. Establishing the guidelines for debit use and other factors,
limitations, accounting, and monitoring and reporting may be created as
a stand-alone document, but will eventually become the ``Project
Description'' within a biological assessment or evaluation, and
subsequent biological opinion. In addition, the debit process could
consider the possibility of Federal agencies other than the Federal
agency that established the Recovery Crediting System being able to use
credits.
Consideration of debits includes ensuring that agencies maintain a
net conservation benefit gained by credit accrual. In general, credits
that accomplish tasks in a species' recovery plan would normally meet a
net conservation benefit standard. However, because credits would be
used for mitigation, it is important to ensure the debit process does
not limit, counter, or preclude necessary recovery objectives. Examples
of using a debiting process to ensure a conservation benefit include:
Using biologically-appropriate mitigation ratios in
habitat-based crediting (e.g., more than one credit for each debit
necessary to fully offset adverse effects).
Maintaining a credit balance that ensures an incremental
increase in the species' conservation status.
Restricting use of debits to areas deemed not essential to
recovery.
Limiting the types of activities available for debiting.
Similar to planning the crediting phase, it is essential that an
activity or action's potential effects to the target species be
sufficiently understood in order for it to be included in the debiting
process. In some instances, the effects of even well-understood actions
may possess some level of uncertainty. The debiting process should be
designed to accommodate uncertainty evaluated based on a clearly stated
and explained set of assumptions.
B. Programmatic Debiting Consultation
The debiting process is subject to consultation under section
7(a)(2) of the ESA. This consultation determines whether a proposed
agency action is likely to jeopardize the continued existence of a
listed species or destroy or adversely modify critical habitat.
Programmatic consultation addresses programs or groups of similar
actions implemented by a Federal agency. A non-jeopardy biological
opinion also determines the amount or extent of anticipated incidental
take, if any.
In implementing a recovery crediting system, the programmatic
approach will be necessary due to the nature of credit and debit
concepts, and to ensure a net conservation benefit to the species. The
Federal action subject to consultation is the establishment of the
debiting process and actions included therein. Under programmatic
consultation, much of the effects analysis is completed upfront, rather
than repeatedly for each individual action. By completing this analysis
beforehand in a programmatic biological opinion, the anticipated
effects of the action agency's future projects can be added into the
environmental baseline prior to their actual completion. The appended
and tiered methods of programmatic consultation involve a two-stage
consultation process that would be appropriate here. The first stage is
programmatic and analyzes the potential landscape-level effects that
may result from the debiting process. The second stage addresses
project-specific effects of each individual project under the action
agency's program and previously included in the programmatic biological
opinion.
A Federal agency may include conservation measures in a proposed
action as mandatory, non-discretionary actions or activities that will
minimize adverse effects to listed species. A recovery crediting system
would formalize that process and mitigate adverse effects to listed
species by taking measures (accruing recovery credits) that may be
included as conservation measures for a specific project in a specific
geographic location. The Service would consider the use of recovery
credits during the jeopardy analysis of a biological opinion. The ESA
requires the Service to specify any necessary or appropriate
minimization of the effects of incidental take exempted in a biological
opinion. Because recovery credits would be acquired in advance of a
specific Federal action and may not be associated with incidental take
resulting from the proposed action itself, they would not normally
minimize the effects of incidental take associated with the specific
action. The biological opinion may still require reasonable and prudent
measures and terms and conditions that address the incidental take
resulting at the project-specific level.
The end product of programmatic consultation will be a
comprehensive biological opinion issued to the Federal action agency
that describes in detail the debiting process and all actions and
activities involved. It will evaluate all potential effects of the
actions (debits) as well as the credits used to offset the effects and
provide a jeopardy analysis for listed species and destruction/adverse
modification analysis for designated critical habitat if applicable. It
is important to consider all listed species that may be affected, not
just the target species, and any designated critical habitat occurring
in the action area for the jeopardy/adverse modification analysis.
The programmatic biological opinion may not be able to describe
take at the programmatic level. In this case, the specific take
authorization and associated reasonable and prudent measures and terms
and conditions
[[Page 62263]]
would be described in site-specific biological opinions. If the
overarching biological opinion can describe, with appropriate
documentation from the action agency, the project-specific actions,
then a list of reasonable and prudent measures and terms and conditions
can be included, and no additional opinion is needed for those actions.
The Service must develop reasonable and prudent measures and terms and
conditions in close coordination with the action agency. This
coordination may identify specific measures the action agency will
incorporate at the project-specific level.
C. Project-Specific Consultation
As individual projects are proposed under the recovery crediting
system, the action agency provides project-specific information as
described in the programmatic biological opinion. This information
should include, but not be limited to, the specific areas to be
affected, the species and critical habitat that may be affected, a
description of anticipated effects (in reference to those already
analyzed in the programmatic biological opinion), a description of any
additional effects not considered in the programmatic consultation,
appropriate reasonable and prudent measures and terms and conditions,
the resulting debits as ranked in the programmatic opinion, and the
credit balance resulting from the action. The project-level
consultation should be an expedited process because most of the needed
analysis will have occurred at the programmatic level. This is an added
incentive for Federal agencies to use programmatic consultation and
recovery crediting.
V. Monitoring
A monitoring program is essential to the success and the
credibility of a recovery crediting system, both for the crediting and
debiting aspects of the process. The scope of the monitoring plan
should be commensurate with the crediting system's conservation
framework, based on the goals and objectives of the species' recovery
plan; the monitoring should measure the objectives as implemented by
the crediting system. Ultimately, the Federal action agency is
responsible for accounting for credits and compliance with the debiting
process as determined through the programmatic biological opinion. The
Service should provide technical assistance in the monitoring plan, and
will be responsible for periodic review of the species' environmental
status, either through an established protocol or more conventional
methods (e.g., 5-year review, programmatic biological opinions, etc.).
In general, monitoring may comprise two elements: Effectiveness
monitoring and compliance monitoring. Effectiveness monitoring will
evaluate the credit valuation and accrual process in achieving the
goals and objectives of recovery actions. This monitoring focuses on
the crediting process, involves principles of adaptive management, and
includes all implementation partners. The responsibility of
effectiveness monitoring belongs to the Federal agency that accrues and
holds credits, although other entities would be involved. When the
credit accrual process results in a biological opinion from the
Service, effectiveness monitoring provisions are part of the project
description. Any coverage under the incidental take statement,
therefore, is dependent on the action agency carrying out the action as
described in the project description.
Compliance monitoring audits and accounts for credits and debits,
and ensures proper implementation of the agency action. Any monitoring
and reporting must be incorporated into the project description as an
integral part of implementing the recovery crediting system.
Although a recovery crediting system is a focused tool for Federal
agencies to make a positive contribution towards the recovery of listed
species while creating flexibility for offsetting effects of their
other actions, the Service encourages the development and use of other
types of crediting systems to meet other needs and circumstances. In
addition, this guidance by no means restricts Federal agencies from
developing other crediting systems such as conservation banks. A
recovery crediting system is one method by which a Federal agency may
contribute towards its section 7(a)(1) responsibilities. The Service
encourages Federal agencies to develop other programs that would also
contribute to the recovery of listed species on Federal and non-Federal
lands.
VII. References
The following is a list of documents that would be useful for
establishing a recovery crediting system. Some are in draft form, but
are readily available to Service personnel through Regional Offices or
the Washington Office.
U.S. Fish and Wildlife Service. 1990. Policies and guidelines for
planning and coordinating recovery of endangered and threatened
species. Washington, DC. 14pp. + appendices.
U.S. Fish and Wildlife Service. 1999. Final Safe Harbor Policy. 64 FR
32717, June 17, 1999.
U.S. Fish and Wildlife Service. 2003. Guidance for the Establishment,
Use, and Operation of Conservation Banks.
U.S. Fish and Wildlife Service and National Marine Fisheries Service.
1998. Endangerered Species Act Consultation Handbook: Procedures for
Conducting Section 7 Consultations and Conferences. Washington, DC.
U.S. Fish and Wildlife Service and National Marine Fisheries Service.
2004 (updated 2006). Draft Endangered and Threatened Species Recovery
Planning Guidance.
Williams, B.K., R.C. Szaro, and C.D. Shapiro. 2007. Adaptive
Management: The U.S. Department of the Interior Technical Guide.
Adaptive Management Working Group, U.S. Department of the Interior,
Washington, DC.
Public Comments Solicited
The draft guidance is broad in nature and intended to be adaptable
to a wide array of local conditions and circumstances. We are
particularly interested in receiving comments on the following aspects
of the draft document:
The level of detail required to make the guidance most
useful in the field.
The clarity of the standards established for a recovery
crediting system.
The means by which a Federal agency will know that credits
it accrues will be available for its use in the future.
The potential relationship between recovery crediting
systems and critical habitat.
We will take into consideration the relevant comments, suggestions,
or objections that we receive by the comment due date indicated above
in DATES. These comments, suggestions, or objections, and any
additional information we receive, may lead us to adopt final guidance
that differs from the draft. We prefer to receive comments via e-mail,
but you may submit your comments by any method mentioned above in
ADDRESSES.
Please submit e-mail comments to recovery_crediting@fws.gov in
ASCII file format and avoid the use of special characters or any form
of encryption. Please also include ``Recovery Crediting comments'' in
the subject line of the message, preferably with your full name and
return address in the body of your message. Please note that the
Internet address will be closed when the public comment period ends.
[[Page 62264]]
Public Availability of Comments
Before including your address, phone number, e-mail 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.
Authority: The authority for this action is the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
Dated: October 25, 2007.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
[FR Doc. E7-21563 Filed 11-1-07; 8:45 am]
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