[Federal Register: May 3, 2004 (Volume 69, Number 85)]
[Rules and Regulations]
[Page 24084-24094]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03my04-18]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 17
RIN 1018-AI85
Safe Harbor Agreements and Candidate Conservation Agreements With
Assurances; Revisions to the Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise our
regulations pertaining to enhancement of survival permits issued under
the Endangered Species Act. The purpose of these revisions is to
improve the current implementing regulations for permits associated
with Safe Harbor Agreements (SHAs) and Candidate Conservation
Agreements with Assurances (CCAAs). These revisions will make Safe
Harbor Agreements and Candidate Conservation Agreements with Assurances
easier to understand and implement.
DATES: This final rule is effective June 2, 2004.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours, at the
Division of Conservation and Classification, U.S. Fish and Wildlife
Service, 4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT: Chris Nolin, Chief, Division of
Conservation and Classification, Fish and Wildlife Service, at the
above address, telephone 703/358-2171, or facsimile 703/358-1735.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act (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 Act authorizes
us to issue permits for otherwise prohibited activities in order to
enhance the propagation or survival of the affected species. 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.
On June 17, 1999, we issued two policies and published revisions of
our regulations to add two categories of permits to enhance the
propagation or survival of listed, proposed, candidate, and other at-
risk species. One category, called ``permits for the enhancement of
survival through Safe Harbor Agreements,'' is detailed at Sec. Sec.
17.22(c) and 17.32(c) (for endangered and threatened species,
respectively), and in the Safe Harbor Policy (64 FR 32717). The other
category, called ``permits for the enhancement of survival through
Candidate Conservation Agreements with Assurances,'' is detailed at
Sec. Sec. 17.22(d) and 17.32(d) (for endangered and threatened
species, respectively), and in the Candidate Conservation Agreements
with Assurances Policy (64 FR 32726).
The Safe Harbor policy and associated regulations are intended to
facilitate the conservation of listed species through a collaborative
approach with non-Federal property owners. The policy and regulations
are designed to create incentives for non-Federal property owners to
implement voluntary conservation measures for certain listed species by
providing certainty with regard to possible future restrictions should
the covered species later become more numerous as a result of the
actions taken by the non-Federal cooperator. Non-Federal property
owners, who through a Safe Harbor Agreement commit to implement
voluntary conservation measures for a listed species, will receive
assurances that no additional future regulatory restrictions will be
imposed. When the property owner meets the issuance criteria of the
regulations we will issue an enhancement of survival permit under
section (10)(a)(1)(A) of the Act, authorizing incidental taking of the
covered species at a level that enables the property owner to return
the property back to population levels or habitat conditions agreed
upon as baseline. Before issuing such a permit, we must make a written
finding that all covered species in the SHA will receive a net
conservation benefit from management actions taken pursuant to the
agreement.
Candidate Conservation Agreements with Assurances are voluntary
agreements between us and non-Federal property owners to benefit
proposed species, candidate species, and species likely to become
candidates in the near future. Under a CCAA, non-Federal property
owners commit to implement mutually agreed upon conservation measures
which, when combined with benefits that would be achieved if it is
assumed that those conservation measures were to be implemented on
other necessary properties, would preclude the need to list the covered
species. In return for the cooperator's proactive management, we
provide an enhancement of survival permit under section 10(a)(1)(A) of
the Act, which, if the species were to become listed, would authorize
take of individuals or the modification of habitat conditions to the
levels specified in the CCAA.
The objective of these revisions to the regulations pertaining to
SHAs and CCAAs is to: (1) Rectify inconsistencies between the policies
and their respective implementing regulations; (2) correct drafting
errors in the regulations overlooked when the regulations were
published in 1999; and (3) clarify ambiguities in the regulations to
eliminate confusion. Our proposed rule, which was published in the
Federal Register (68 FR 53320) on September 10, 2003, included a
request for public comments. The closing date for the comment period
was November 10, 2003.
[[Page 24085]]
Summary of Comments and Recommendations
In response to our request for comments on the proposed revisions
to the regulations, we received letters from 22 entities. Thirteen were
generally in support of our proposed regulation changes, while nine
expressed concerns over certain parts of the changes. We reviewed all
comments received and have incorporated accepted suggestions or
clarifications into the final regulations. Because most of these
letters included similar comments, we grouped the comments according to
issues. Following is a summary of the relevant comments and our
responses.
Transfer of Permits
Issue 1: Several commenters agreed with our revision to 50
CFR13.25(c) that authorizes permits to be transferred provided that the
new owner agrees to become a party to the original agreement and
permits. Some commenters also noted that this change provides more
incentive to landowners to enter into SHAs and CCAAs as entering into
an SHA or CCAA should not be a detriment to selling one's property. One
commenter stated that we should maintain discretion to allow permit
transfer, but not be obligated to do so. This commenter specifically
noted that it may be preferable for us to negotiate a new Safe Harbor
permit with a potentially higher baseline condition with the new owner
than it would be to allow the new owner to return the property to
baseline conditions established under the prior owner.
Response 1: While we acknowledge that circumstances may occur that
are beyond the control of the landowner and that may warrant
consideration of a new baseline, we will not make renegotiation of the
baseline a requirement when a permit is transferred to a new owner.
Since these agreements are totally voluntary and a new owner does not
have to agree to become a party to the existing SHA, there is no
advantage to making renegotiation of the baseline a requirement when
transferring permits. Including such a requirement may be a
disincentive to property owners who are initially entering into an SHA
as well as to potential new owners of a property covered under an
existing agreement.
If a new owner does not agree to become a party to the existing
SHA, they would be in violation of the take provisions of section 9 of
the Act (and associated regulations) if they return the property to
baseline without an appropriate authorization/permit from us. Thus,
just as there is an incentive for the original property owner to enter
in an SHA, this same incentive exists for a new property owner to
participate in and accept the transfer of an existing agreement.
Definition of Property Owner
Issue 2: We proposed to revise 50 CFR 17.22(c)(1), 17.22(d)(1),
17.32(c)(1), and 17.32(d)(1) to define applicants as property owners,
including anyone with a fee-simple, leasehold, or other property
interest sufficient to carry out the proposed management activities.
One commenter stated that, by defining an applicant in terms of
property ownership, our proposal creates confusion and is overly
restrictive. The commenter points out that, in other sections of the
regulations (e.g., permit application requirements at 50 CFR
17.32(c)(1)(i) and issuance criteria at 50 CFR 17.32(c)(2)), we refer
to the ``applicant'' and do not make any mention that the applicant
must be a ``property owner.'' The commenter suggests that we should
consistently use the term ``applicant'' rather than attempting to
broaden property interests to cover the myriad of possibilities beyond
fee simple ownership. The commenter believes that the requirements for
CCAAs do not necessitate that an ``applicant'' also be a ``property
owner'; the critical standard is whether an ``applicant'' can
demonstrate the ability to meet the issuance criteria. Other commenters
agreed with our proposed revision but some also noted that we should
clarify the regulations further by specifically indicating that these
agreements can take place only on non-Federal land consistent with the
SHA and CCAA policies. Two commenters objected to any revision
broadening the availability of SHAs or CCAAs for use on leased Federal/
State lands or rights of way. Another commenter suggested that we
further elaborate in the regulatory language to indicate that
``property owner'' includes owners of easements, water rights, and
rights under long-term licenses.
Response 2: The purpose of the proposed revision related to this
issue was to clarify which types of property owners could qualify for
an enhancement of survival permit for an SHA or CCAA and receive the
assurances granted under these types of permits, as the SHA and CCAA
policies refer to property owners in several different ways. The
proposed regulation was not intended to limit certain types of entities
or property owners from being permit holders, but simply to state that
persons/entities who have a fee simple, leasehold, or other property
interest that is sufficient to carry out the proposed management
activities subject to State law qualify as property owners and may
receive the assurances under an enhancement of survival permit. The
important consideration is not the type of property ownership, but
whether it gives the person/entity the power and authority to carry out
the management activities and other provisions of the SHA or CCAA.
We did not intend to broaden the availability of the assurances
provided under these permits to make them include activities by non-
Federal property owners that are conducted on Federal lands. Such
activities are subject to regulation by the responsible Federal agency.
Federal agencies are not eligible for the assurances provided under
SHAs or CCAAs as they have an affirmative responsibility for species
conservation under section 7(a)(1) of the Act, and authorization for
incidental take involving Federal land is covered under the provisions
of section 7(a)(2) of the Act and implementing regulations. Only non-
Federal property owners conducting activities on non-Federal land may
receive the assurances under an enhancement of survival permit for an
SHA or CCAA (see 50 CFR 17.22(c)(5)(i), 17.22(d)(5), 17.32(c)(5)(i),
and 17.32(d)(5)). This limitation in assurances to only non-Federal
property owners is also clearly stated in the 1999 SHA policy, where we
defined ``enrolled property'' to mean ``all private or non-Federal
property, waters, or natural resources to which the assurances in a
Safe Harbor Agreement apply and on which incidental taking is
authorized under the enhancement of survival permit.''
Under some circumstances, a State, tribal, or local agency, or
other entity, may be able to work more promptly, effectively, and
efficiently with individual property owners toward conservation of
listed, candidate, or other at-risk species. In these cases, under the
SHA and CCAA policies, we can enter into an ``umbrella'' or
programmatic agreement with the appropriate agency or other entity. The
agreement and associated enhancement of survival permit would specify
the assurances and take allowances that could be distributed by the
participating agency or other entity to the eligible individual non-
Federal property owners, usually through a Certificate of Inclusion. In
these situations, the assurances and take allowances in the permit
apply only to the individual non-Federal property owners who choose to
be included. In some cases, which we anticipate will occur only very
infrequently, we may issue the
[[Page 24086]]
enhancement of survival permit to a part of our agency (e.g., a Species
Recovery Coordinator), who in turn issues Certificates of Inclusion to
the non-Federal property owners. Again, it is only the non-Federal
property owners who receive the assurances for the specified allowable
take.
Based on the confusion created by our proposal to use the term
property owner, we will not make this proposed revision. Instead, we
will continue to use the term ``applicant'' in 50 CFR 17.22(c)(1),
17.22(d)(1), 17.32(c)(1), and 17.32(d)(1). The term ``non-Federal
property owner'' is defined in the both the SHA and CCAA policies, but
those definitions do not make it clear that persons who have a
leasehold or other property interest that is sufficient to carry out
the proposed management activities subject to State law qualify as non-
Federal property owners. Therefore, in this final rule we are adding a
definition of ``property owner'' to 50 CFR 17.3 to clarify this issue.
Issue 3: One commenter stated that the proposed revision will allow
individuals who hold temporary or limited property interest to enter
into agreements on properties that they do not own. The commenter
believed this may be problematic and suggested we clarify our view on
this or not make the proposed change.
Response 3: The proposed revision would not change what type of
property owner can receive an SHA or CCAA enhancement of survival
permit. Persons/entities that have a lease on a property that they do
not own have always been able to apply for and receive a permit for an
SHA or CCAA provided they meet the issuance criteria. While the length
of time a person holds a lease on a property and the terms of the lease
will be considered when we issue these types of permits and can have an
influence on the conservation benefit to the species, we are not
establishing thresholds on these timeframes; each application will be
evaluated on a case-by-case basis. Depending on the nature of the SHA
or CCAA, we believe that entities with less-than-permanent interests in
property or less-than-complete interests in property could meet the
requirement that the applicant must have ``shown capability for and
commitment to implementing all of the terms of the SHA or CCAA.''
Acknowledgement of Two Categories of Take (Safe Harbor Agreements Only)
Issue 4: We proposed to revise 50 CFR 17.22(c)(1)(ii) and
17.32(c)(1)(ii) to acknowledge that there are two broad categories of
incidental take that may occur under an SHA. One commenter believed the
proposed revisions require the property owner to submit more
information to obtain a permit than was previously required since they
would now have to indicate how take will occur as a result of both
management and a return to baseline. The commenter believed this will
increase the cost of obtaining a permit and, therefore, be less likely
to occur. Other commenters agreed with the proposed change to the
regulations, stating that it was appropriate that we amend these
provisions.
Response 4: We disagree with the commenter who believes that this
change in the regulations requires the property owner to submit more
information than was previously required. Information regarding how
incidental take is likely to occur, both as a result of management
activities and as a result of the return to baseline, has always been
required in order to issue an enhancement of survival permit associated
with an SHA, as we need this information to analyze the benefits and
potential adverse effects of implementing the SHA. We acknowledge that,
in some cases, management activities that a landowner undertakes may
result in incidental take of the species, and such activities should be
described in the SHA. The revision of the regulation is making this
information requirement more obvious to an applicant who uses the
regulations as a guide in applying for this type of permit.
Description of Future Land Use (Safe Harbor Agreements Only)
Issue 5: Several commenters agreed with our proposed change at 50
CFR 17.22(c)(1(ii) and 17.32(c)(1)(ii) to clarify the information being
requested about future activities in relation to incidental take, as
they believed this provision may have led to decreased use of SHAs in
the past. Two commenters agreed with the revision. One of these
commenters also stated that the existing language--which requires a
``description of the land use or water management activity for which
the applicant requests incidental take authorization''--also should be
retained, and noted that this information is crucial to our evaluation
of the proposed agreement and plan.
Response 5: The original regulations at 50 CFR 17.22(c)(1)(ii) and
17.32(c)(1)(ii), pertaining to application requirements for permits for
enhancement of survival through SHAs, specified that the application
include ``A description of the land use or water management activity
for which the applicant requests incidental take authorization.'' This
requirement has been mistakenly interpreted by some as an intent by us
to limit use of private property after the term of the agreement and
permit. This is not the intent of the regulations; we neither wish, nor
have the authority, to limit such future use of property by a
landowner. Therefore, we proposed to revise this provision to require
the applicant to describe how incidental take may occur (i.e. through
management activities and/or return to baseline), and to make it
clearer that we are not requiring a description of future land use or
water management activities that will take place after the term of the
agreement and permit. We believe that our revision requires the
appropriate information for evaluating the permit application and the
SHA.
Issue 6: One commenter suggested that we should announce that we
are eliminating the requirement to describe future land uses from the
SHA policy as well as the regulations in order to achieve consistency
between the regulations and the policy.
Response 6: We agree with the commenter that it would be helpful to
amend the SHA policy to be consistent with these regulations. In order
to amend the policy, we must publish a proposed policy amendment in the
Federal Register and make that available for at least a 30-day comment
period. Following the close of the comment period, we would analyze any
comments and publish a final policy. As our budget allows, we will seek
to go through this process to make this change in the SHA policy in the
future.
Net Conservation Benefit (Safe Harbor Agreements Only)
Issue 7: Several commenters agreed with the proposed change at 50
CFR 17.22(c)(2)(ii) and 17.32(c)(2)(ii) to include the language
``reasonably expected'' with regard to net conservation benefits. Some
commenters stated that the current standard is unreasonable in
requiring a certain finding of future events. Two commenters stated
that, since nature can be complex and unpredictable, the change in
language from ``will provide a net conservation benefit'' to ``is
reasonably expected to provide a net conservation benefit'' is
reasonable. One commenter believes that this language change will
increase the likelihood that a landowner will enter into a conservation
agreement.
Response 7: We agree with the commenters who are in favor of the
proposed revision. We suggested this revision to address confusion
regarding the word ``will'' in the issuance criteria,
[[Page 24087]]
which could have been interpreted as suggesting that we must determine
with complete certainty that a net conservation benefit will occur
before a permit can be issued. This unrealistic standard was not the
intent of the Safe Harbor Policy or the regulation.
Notification Requirement
Issue 8: Our proposed regulation included replacing the requirement
that a property owner notify us at least 30 days in advance of when he
or she expects to incidentally take any species covered under a permit,
with a requirement that the property owner notify us in advance of any
incidental take ``when appropriate.'' One commenter stated that the
``when appropriate'' language makes the regulation largely meaningless
by leaving the decision to notify us entirely up to the discretion of
the permittee. This commenter suggested we change the language to read,
``The permittee is required to notify FWS at least 30 days before
engaging in an activity that could result in the take of a listed
species, unless FWS agrees to an activity with shorter notification or
immediate action.'' Another commenter agreed with our proposed change
as long as we have the authority to evaluate situations on a case-by-
case basis so that emergency situations remain the exception and not
the rule. Other commenters agreed with our proposed change, stating
that it provides the flexibility that both we and the permit applicants
need to negotiate a notification requirement that makes sense for each
specific agreement. Two commenters did not agree that the mandatory 30-
day advance notice requirement in the original regulation was an undue
burden or a significant disincentive for landowners who are considering
applying for either SHAs or CCAAs. One commenter also stated that, even
if a species cannot be captured and relocated, it is both prudent and
appropriate that we always be aware in advance of the impending
incidental take of species covered under the permit or return of the
property to baseline conditions. Another commenter suggested that if we
make the proposed change, strict guidelines clearly defining the
circumstances under which advance notification would not be required
must be either incorporated into the regulations or into individual
SHAs and CCAAs. Still another commenter believed the public should be
informed 90 days before any ``killing'' is to take place, that any
permittee should give us 120 days' notice of when the permittee expects
to ``take/kill'' wildlife, and the general public must be given full
facts on this ``killing.''
Response 8: The purpose of the proposed revision regarding
notification was to provide flexibility for determining when a
notification requirement would be appropriate. For some species and
some SHAs, notification prior to take may not be necessary, while for
other species and SHAs notification more than 30 days prior to take may
be appropriate. By adding the term ``when appropriate,'' the Service
and applicants can determine what will work best for their individual
SHA. When the notification timing is decided, it will be clearly
described in the SHA and the associated permit. In addition, each
permit holder is required to report to the Service, usually annually,
on the activities associated with his or her SHA. This report would
include a description of any take that had occurred since the last
report. Therefore, the Service would still know that the take
associated with bringing that property back to baseline had occurred.
We disagree with the commenter who suggested that the public should
be informed prior to the occurrence of any take associated with a
permit. A notification of the receipt of each proposed SHA must be
published in the Federal Register and a public comment period, usually
30 to 60 days, is required. During this time, the public has an
opportunity to read and provide comments on the terms of the SHA, and
such terms include a description for how take may occur (for initial
and ongoing management activities) and when it will likely occur (when
the conditions of the permit have been met).
Mitigation and Conserved Habitat Areas
Issue 9: Several commenters believed that the proposed revisions at
17.22(c)(5)(ii) and 17.32(c)(5)(ii) to remove references to additional
mitigation measures and to ``conserved habitat areas'' make SHAs
completely subject to the discretion of the permittee, and that the
original language was more than sufficient to set reasonable
limitations on requirements for additional conservation measures. These
commenters stated that the proposed change does not allow us to require
additional conservation measures without the consent of the permittee,
even if such additional measures are found to be necessary to avoid
harming the affected endangered or threatened species. Several other
commenters agreed with our proposed changes, stating that removing
references to the terms ``mitigation'' and ``conserved habitat areas''
made sense, since there are no mitigation requirements or conserved
habitat areas in either the SHA or CCAA policies.
Response 9: The intent of this change was solely to match the
regulations for SHAs and CCAAs with the respective policies, in order
to eliminate confusion. Neither policy has any mitigation requirements
or makes any references to the term ``conserved habitat areas;'' these
terms are used in conjunction with Habitat Conservation Plans (see 50
CFR 17.22(b)). As we stated in our proposed rule, establishing
authority to require a landowner to carry out other measures that were
not previously agreed to by the property owner is not appropriate for
SHAs and CCAAs.
Other Conservation Measures
Issue 10: One commenter believed the proposed changes at 50 CFR
17.22(c)(5)(ii), 17.22(d)(5)(ii), 17.32(c)(5)(ii), and 17.32(d)(5)(ii)
would undermine the basic concept of adaptive management in that, while
a variety of changing circumstances can and must be reasonably
foreseen, the specific responses to those changing circumstances that
will be most appropriate may not be foreseeable. The commenter believes
the Service should not provide regulatory assurances because we are
dealing with the uncertainties of a necessarily changing biological
world, and it is only reasonable to assume that some changes might
occur. Another commenter stated that a conservation agreement should
not be entered into if the landowner will be allowed to knowingly
degrade the habitat they have agreed to protect. This commenter stated
further that we should not expose ourselves to potential pressure from
landowners who have knowingly and willingly degraded habitat and then
expect us to modify the conservation agreement to allow for the new,
degraded condition. Other commenters supported the proposed change,
stating that as SHAs are voluntary agreements, it is inconsistent for
one party to reserve the right to change the terms of the agreement
unilaterally and to require the other party to adhere to unilaterally
changed terms.
Response 10: We do not believe that the proposed changes undermine
the concept of adaptive management. We actively promote this concept,
recognizing the value of incorporating adaptive management into
conservation agreements in dealing with changing situations and new
information. Under SHAs, landowners agree to manage their lands to
provide a net conservation
[[Page 24088]]
benefit to listed species and cannot degrade the habitat below the
biologically-based baseline. Likewise, under CCAAs, landowners agree to
manage their lands to remove threats to at-risk species. Also, because
these agreements are voluntary, and sought by landowners who are
willing to provide habitat, we do not believe landowners will willingly
degrade habitat in order to modify the conservation agreement to allow
for the new, degraded condition. We agree that we cannot reserve the
right to change the terms of the agreement unilaterally while requiring
the permittee to implement the changed terms.
Revocation
Issue 11: Several commenters believed the changes to the revocation
language (at 50 CFR 17.22(c)(7), 17.22(d)(7), 17.32(c)(7), and
17.32(d)(7)) would severely limit our ability to revoke a permit even
when the continuation of the permitted activity would appreciably
reduce the likelihood of survival and recovery of the species in the
wild. These commenters believe that the proposed revision pertaining to
the option of compensating a property owner to forgo an activity could
result in a need for us to obtain large amounts of funding, and that
this would be unreasonable and could lead to situations where
permittees profit by proposing activities that would harm the species
for the purpose of being paid by the Service not to engage in the
activity. Other commenters thought the option of public compensation
for imperiled species was highly inappropriate since they are a public
trust resource. Two commenters also noted that the option of relocating
the species undermines the purpose of SHAs and CCAAs, which is to
secure habitat for imperiled species. Another commenter objected to the
proposed change, in part, because the commenter believed we are
applying the revocation standard for Habitat Conservation Plans to
SHAs, which are totally voluntary agreements. This commenter believed
that permits for an SHAs should not be revoked for any reason except as
provided for under 50 CFR 13.28(a)(1) through (4) or unless
continuation of the permitted activity would be inconsistent with the
criterion set forth in 50 CFR 17.22(c)(2)(iii) and the inconsistency
has not been remedied in a timely fashion. The commenter also suggested
that a permit should not be revoked for this last reason unless the
permittee has declined an offer from us to purchase their property (or
an interest) at fair market value or has refused our request to
relocate individual animals from their property in order to avoid the
inconsistency (with 50 CFR 17.22(c)(2)(iii)).
Response 11: We disagree that our proposed revocation language
would severely limit our ability to revoke a permit even when the
continuation of the permitted activity would appreciably reduce the
likelihood of the survival and recovery of the species in the wild. The
regulations authorize the Service to revoke a properly implemented SHA
or CCAA enhancement of survival permit when such conditions exist. We
believe that our proposed change provides an array of options to pursue
in order to avoid permit revocation, but does not inappropriately limit
our ability to revoke a permit in the highly unlikely event that such
an action is necessary.
We disagree with those commenters who believe that the proposed
changes to the revocation language would result in some applicants
knowingly proposing certain activities that they actually do not intend
to implement, in order to potentially profit from being paid to not
engage in such activities later. Applicants enter into SHAs and CCAAs
in good faith and we work diligently with them to design and then
implement agreements that will have the intended outcomes. Should a
lapse in permit compliance occur, we want to retain our flexibility to
work with the permit holder to rapidly be back in compliance, in order
to continue activities that are benefiting the covered species.
However, in the highly unlikely event that this should not be possible,
we are obligated to do whatever is necessary for the continued survival
of the species. While we acknowledge that potentially having to
purchase properties or conservation easements may be costly, we do not
anticipate this need arising frequently, if at all, particularly in
light of other available options for avoiding revocation of a permit.
With regard to the commenters who believe that potentially
relocating species undermines the purpose of SHAs and CCAAs, we
disagree with their premise that the purpose of these agreements is to
secure habitat for imperiled species. While the outcome of these
agreements may be to secure habitat, that is not their specific
purpose. The purpose of an SHA is to provide the expectation of a ``net
conservation benefit'' that will aid in a species'' recovery, either
directly or indirectly, as described in the SHA policy and associated
regulations. The purpose of a CCAA is to contribute to precluding the
need to list the species. If relocation of individuals of a species
covered under a SHA or CCAA is deemed appropriate, such an action would
not undermine those agreements or the purpose of SHAs or CCAAs.
Our proposed revision of the regulation pertaining to revocation of
permits associated with SHAs and CCAAs was designed to address concerns
that the regulation, as adopted in 1999, may be a disincentive to
landowners considering development of such agreements. The proposed
change is consistent with our goal of encouraging non-Federal property
owners to engage in SHAs and CCAAs. We disagree that it would be
appropriate to limit the options to pursue, as suggested by one
commenter, to include only the purchase of a permittee's property (or
interest) at fair market value, or the relocation of individual animals
from the property. Rather, we believe it is in the best interest of a
permittee, as well as being in the public interest, to have a broader
range of options available for the Service and the permittee to pursue,
as identified in the proposed rule. The revised text provides further
clarity and assurance to landowners of the very strong commitment on
the part of the Service to pursue, with the consent of the permittee,
all relevant and appropriate options to avoid permit revocation.
Issue 12: One commenter stated that use of the portion of our
proposed regulatory language on revocation that relies on the
definition of destruction or adverse modification of critical habitat
will invite legal challenges since this definition was invalidated by
the 5th Circuit Court of Appeals in Sierra Club v. U.S. Fish and
Wildlife Service, 245 F.3d 434 (5th Cir. 2001).
Response 12: Based on the statutory authority provided under
section 7(a)(2) of the Act, the Director may revoke a permit if
continuation of the permitted activity would either be likely to
jeopardize the continued existence of a listed species or result in the
destruction or adverse modification of designated critical habitat.
Issue 13: One commenter stated that it was appropriate for us to
clearly include language in the regulations indicating that we would
exhaust our alternatives before revoking a permit, particularly given
the truly voluntary nature of SHAs and CCAAs. However, the commenter
cautioned that it is extremely important that the time used in taking
alternate actions not further imperil an endangered species. Another
commenter supported our proposed revocation language and believed that,
by indicating we would pursue all
[[Page 24089]]
appropriate options to avoid permit revocation, the incentive for
potential applicants to enter into SHAs and CCAAs would increase.
Response 13: We agree with these commenters and we try to deal with
these issues in a time-sensitive manner. Also, see our response to
issue 11.
Issue 14: A commenter stated that we do not offer any legal basis
or meaningful explanation for the proposed revision of the revocation
language other than the current revocation text ``may create
disincentives to landowners considering the development of a [SHA or
CCAA].'' The commenter believes including authority to revoke a permit
if we find that the continued permitted activity would ``directly or
indirectly alter designated critical habitat such that it appreciably
diminishes the value of that critical habitat for both the survival and
recovery of a listed species'' may exceed our authority. The commenter
further noted that the Service has by regulation already asserted the
``jeopardy'' standard as a basis for revocation. The commenter noted
that they cannot, however, support the continued extension of the
current regulation (which asserts the ``jeopardy'' standard) to reach
future direct or indirect alteration of critical habitat by landowners
operating under SHAs and CCAAs in the absence of a clear legal basis.
Response 14: The revocation provisions of both the 1999 regulations
and the revised regulations are based on the legal premise that the
Service may revoke a permit if continuation of the activities
authorized by the permit would violate the substantive standards of
section 7(a)(2) of the Act, which include both the ``jeopardy'' and
``critical habitat'' standards. Our issuance of an enhancement of
survival permit in association with an SHA or a CCAA is a Federal
action that is subject to an intra-Service consultation under section
7(a)(2) of the Act. The 1999 revocation provisions indicated that the
Service may revoke a permit if continuation of the permitted activity
becomes inconsistent with the no jeopardy issuance criterion. The
revised regulation clarifies that the Service has the authority to
revoke a permit that violates either the no jeopardy standard or the
adverse modification of critical habitat standard in section 7 of the
Act. The language in the revised revocation provisions is taken
directly from the definitions of ``jeopardize the continued existence
of'' and ``destruction or adverse modification'' in the Service's
section 7 regulations (50 CFR 402.02).
Relationship to No Surprises
Issue 15: One commenter stated that we should postpone finalizing
this rulemaking based on the recent court ruling in Spirit of the Sage
Council v. Norton on the ``no surprises rule'' and ``permit revocation
rule.'' The commenter noted that the ruling vacated the ``permit
revocation rule'' and remanded both rules to the Service for further
consideration.
Response 15: The Spirit of the Sage Council v. Norton ruling deals
only with the no surprises rule and permit revocation language for HCPs
(see 50 CFR 17.22 and 17.32(b)(8)). The ruling does not apply to
regulations for SHAs or CCAAs and thus, we see no need to postpone this
rulemaking as a result of the ruling.
Other Issues
Issue 16: One commenter, while agreeing with the proposed
regulation changes, stated that we did not address the issue of
neighboring property owner vulnerability. This commenter stated that,
while a participating property owner may enjoy greater certainty that
their habitat conservation work will not be ``punished'' under the Act,
the property owner may opt not to participate in an SHA for fear of
placing their neighbors in ``ESA jeopardy.''
Response 16: We agree that the fear of increasing a neighboring
property owner's potential liability under section 9 of the Act may be
a disincentive for some property owners to enter into an SHA. The SHA
policy offers flexibility when dealing with neighboring landowners to
address this concern. Our work with property owners on an SHA includes
working with them in relation to contacting neighboring landowners to
see if they also are willing to voluntarily enter into an agreement.
Also, designing a programmatic agreement that can cover multiple
landowners, each of which may be covered through issuance of a
certificate of inclusion, is one of the ways we may help resolve the
concern raised by the commenter. Consequently, we do not believe that
the regulations need to be revised to more directly address neighboring
property owners.
Issue 17: A commenter stated that, while they support many of the
proposed revisions, they have concerns over the existence of sufficient
resources for us to adequately implement SHAs and CCAAs. The commenter
believes the largest impediment to widespread utilization of the SHA
and CCAA programs is the inherent uncertainty about the amount of time
and cost of the permit application process and urges us to devote the
resources necessary to fully implement the proposed revisions.
Response 17: We believe SHAs and CCAAs are very important tools
that help to conserve listed and at-risk species. We will continue to
seek funding for these programs in a manner that recognizes our need to
balance funding for our work on SHAs and CCAAs with the other work we
do as part of our Endangered Species program, such as listing,
consultations, and recovery work.
Issue 18: One commenter recommended that we revise our regulations
to provide more certainty with respect to the procedures we use to
process SHA and CCAA applications and complete the issuance of the
permits. To encourage more voluntary agreements, the commenter
suggested we include a time limit of 90 days for our review of
applications. The commenter also suggested that we include language
that would require us to provide a copy of the proposed permit to the
applicant for review prior to final issuance. The commenter believed
this would allow for correction of factual data and of inconsistencies
between the permit and agreement and, thus, increase the efficiency of
the permit process.
Response 18: We disagree that our regulations need to be changed in
the manner suggested by the commenter. We work diligently to process
these agreements and their associated permits as expeditiously as
possible. For a variety of reasons, some agreements take longer to
develop and review than others. For example, an umbrella or
programmatic SHA or CCAA that involves more than one species will
usually take longer to develop and review than an agreement that
involves a single landowner and a single species. We do agree with the
commenter that providing the applicant with a copy of the proposed
permit for review prior to final issuance helps to increase the
efficiency of the permitting process, and in fact we do routinely
develop and share the permit terms and conditions, along with other
documents, with the applicant throughout the agreement development
process.
Issue 19: One commenter urged that we use the biologically based
baseline for judging whether to revise an SHA, and not use the
``jeopardy'' test.
Response 19: We disagree with the commenter that we should not use
a ``jeopardy test.'' We use both a biologically based baseline and a
``jeopardy'' analysis in developing an SHA with an applicant. A
baseline, expressed in numbers of individuals of the species and/or
acres of occupied
[[Page 24090]]
habitat, is determined for each species enrolled under the applicant's
SHA. If the applicant wants to add another species sometime in the
future, a baseline is also established for that species. If something
beyond the applicant's control happens to change the baseline (e.g., a
hurricane knocking down nest trees for the red-cockaded woodpecker),
then a change in the baseline may be necessary.
Our issuance of an SHA permit is a Federal action that requires an
intra-Service consultation under section 7 of the Act. Specifically,
section 7(a)(2) of the ESA requires us to ``insure that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of critical habitat of such species.* * *'' The jeopardy analysis is
based on a ``biological baseline'' of the species as a whole, not just
the individual or populations of the species to be enrolled under the
SHA. Therefore, we believe that no changes are necessary in the way we
evaluate SHAs using a jeopardy analysis.
Issue 20: One commenter stated that any changes to programs
affecting listed species should not be made unless the changes
substantially outweigh all detriments to the species.
Response 20: We must ensure that any proposed SHAs and CCAAs will
meet the issuance criteria before we can issue the permit. One of the
issuance criteria for SHAs is to ensure that the proposed activities
will be likely to result in a net conservation benefit for the species.
What constitutes a net conservation benefit will vary depending upon
the species and the proposed activities. However, it generally means
that any potential negative impact to the species is outweighed by the
benefits of the activities. The Service and applicant may agree to
amend an existing agreement or permit for several reasons. When the
amendment involves the species and or property enrolled, those changes
must still meet the ``net conservation benefit'' standard.
Issue 21: One commenter believed that we should not utilize our
limited resources to enter into CCAAs (or CCAs) because it is doubtful
they could benefit the species biologically because the conservation
needs of the species would be too speculative, unlike that for listed
species, which are more fully understood.
Response 21: We disagree with the commenter. Candidate species are
those species for which we have sufficient information on file relative
to status and threats to support issuance of proposed listing rules;
therefore, in general, the conservation needs of these species are no
more speculative than for listed species. We do agree that for some
species at-risk, we may not fully understand the biology of the
species, but through CCAAs that incorporate adaptive management
principles, we may gain additional information on the conservation
needs of the species, while at the same time protecting habitat or
reducing threats. We believe that, by spending part of our Endangered
Species Program budget on the conservation of such species, we may be
able to preclude the need to list them under the Act. By precluding or
removing the need to list a species through early conservation efforts
we increase the likelihood that simpler, more cost-effective
conservation options will still be available and that conservation will
ultimately be successful, and at the same time, property owners have a
much greater opportunity to maintain land use and development
fIexibility.
Issue 22: One commenter was concerned that some of the proposed
revisions would result in the permitting of activities that operate to
the disadvantage of endangered and threatened species, as well as
candidate and proposed species, and would not be consistent or in
compliance with the purpose of the Endangered Species Act.
Response 22: We will not issue enhancement of survival permits that
are not consistent or in compliance with the purposes of the Act.
Before we can issue a permit, we must determine that the applicant
meets the issuance criteria. For SHAs, the agreement must provide the
expectation of a net conservation benefit to the species. For CCAAs,
the agreement must contain conservation measures that provide benefits,
when combined with those benefits that would be achieved if it is
assumed that conservation measures were also to be implemented on other
necessary properties, would preclude or remove the need to list the
species. Also, under section 7 of the Act, we must ensure that the
conservation measures included in any agreement with assurances are not
likely to jeopardize any listed or proposed species or result in result
in the destruction or adverse modification of designated or proposed
critical habitats for such species. Thus, we are operating in
compliance with the purposes of the Act.
Issue 23: One commenter was concerned about a perceived
inconsistency between the proposed revisions and the CCAA policy. The
commenter believes the CCAA policy does not require an applicant to
remove the threats to a covered species. Rather we must find that the
conservation benefits of the measures implemented within a covered
area, when combined with those benefits if conservation measures were
also implemented elsewhere within the range of a covered species, would
cumulatively preclude or remove the need to list. The commenter asked
us to clarify this inconsistency in order to avoid confusion. The
commenter notes that (1) a considerable amount of time, money and
resources are necessary to develop plans that satisfy regulatory
standards, (2) this commitment of time and resources can be a
disincentive to participation in conservation planning by non-Federal
parties, and (3) clarifying this regulation to expedite the processing
of conservation plans and permit applications will therefore benefit
the applicant, the Service, and species alike.
Response 23: We do not believe there is an inconsistency with the
CCAA policy. The CCAA policy does not require that an applicant's
actions remove the threats to a covered species throughout its range.
Rather, the policy states: ``While the Services realize that the
actions of a single property owner usually will not preclude or remove
any need to list a species, they also realize the collective effect of
the actions of many property owners may be to preclude or remove any
need to list.'' As called for in the CCAA policy and associated
regulations, the CCAA should clearly describe how the proposed
conservation measures would reduce or eliminate the threats to the
covered species on the enrolled property. The types of conservation
measures specified in the CCAA will depend upon the types, amounts, and
condition of habitats existing on and off the enrolled property, the
threats to the covered species that are being addressed, and the degree
of imperilment of the covered species. In many cases, implementing only
one CCAA for a species will not preclude the need to list the species,
but a number of CCAAs in combination may achieve this goal.
Summary of Changes From the Proposed Rule
We have revised the proposed regulation by adding a definition of
``property owner'' to Sec. 17.3. We have withdrawn the proposal to
amend the first sentence of the following sections: Sec. Sec.
17.22(c)(1), 17.22(d)(1), 17.32(c)(1), and 17.32(d)(1) that relates to
the application requirements; we will
[[Page 24091]]
continue to use the term ``applicant'' in these sections.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal or policy issues.
This rule was reviewed by the Office of Management and Budget (OMB) in
accordance with the four criteria discussed below.
(a) This rule will not have an annual economic effect of $100
million or more or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. Because most of
this rule deals with revisions that clarify rather than substantially
alter our current regulations, we do not anticipate that this rule will
cause any significant economic changes, either positive or negative. We
have concluded that this rule will have some beneficial economic effect
because we are rectifying inconsistencies and drafting errors; we
believe these changes will increase efficiency by making Safe Harbor
Agreements and Candidate Conservation Agreements with Assurances easier
to undertake and implement. The effect would be minimal because of the
small number of permits anticipated to be issued.
(b) This rule is not expected to create inconsistencies with other
agencies' actions. Although the Safe Harbor and Candidate Conservation
Agreements with Assurances policies are joint policies with the
National Oceanic and Atmospheric Administration Fisheries (NOAA
Fisheries), the implementing regulations subject to this rule apply to
the Fish and Wildlife Service exclusively. NOAA Fisheries has not
adopted similar regulations to the Fish and Wildlife Service regarding
these policies.
(c) This rule is not expected to significantly affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients.
(d) OMB has determined that this rule raises novel legal or policy
issues and, as a result, this rule has undergone OMB review. If this
regulation can help facilitate wider adoption of the Safe Harbor
Agreement and Candidate Conservation Agreements with Assurances
programs, it could help increase private conservation efforts on behalf
of listed and unlisted species, which is a key component of successful
implementation of the Act.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an 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),
unless the agency 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. The following discussion explains our determination.
We have examined this rule's potential effects on small entities as
required by the Regulatory Flexibility Act (RFA). The rule does not
establish any new application or implementation burdens. Submitting
applications for enhancement of survival permits under the Act is
voluntary, and participation in activities that enhance the survival or
propagation of species is also voluntary on the part of the applicant.
We expect that any impacts of this rule would be beneficial because
they clarify the regulatory requirements for obtaining enhancement of
survival permits under the Act. Therefore, we do not expect these
changes to affect a substantial number of small entities. To date, we
have issued 22 Safe Harbor Agreement permits and 5 Candidate
Conservation Agreements with Assurances permits, for an average of
approximately five Safe Harbor Agreement permits and one Candidate
Conservation Agreement with Assurances permit per year. We expect to
issue approximately the same number of enhancement of survival permits
per year. Given the low number of enhancement of survival permits
expected to be issued, and the fact that this rule provides
clarifications rather than substantial changes to the regulations, we
certify that this rule will not have a significant economic impact on a
substantial number of small businesses, organizations, or governments
pursuant to the RFA.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Although this rule is a significant action under Executive Order 12866,
it is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action and no Statement of Energy Effects is 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.), we make the following findings:
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. We expect
that this rule will not result in any significant additional
expenditures.
(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; as a result, it is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act. This rule imposes no
obligations on State, local, or tribal governments.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. This rule has no provision that would
take private property rights. Participation in this permitting program
is strictly voluntary.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this rule
with appropriate resource agencies throughout the United States.
Civil Justice Reform
In accordance with Executive Order 12988, this rule does not unduly
burden the judicial system and meets the requirements of sections 3(a)
and 3(b)(2) of the Order. The purpose of this rule is to address
inconsistencies in and clarify the current regulations.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, this rule does
not directly affect Tribal resources. The effect of this rule on Native
American Tribes would be determined on a case-
[[Page 24092]]
by-case basis through individual evaluations of permit applications.
Under Secretarial Order 3206, we will, at a minimum, share with the
entity that developed the permit application any information provided
by the Tribes, through the public comment period or formal submissions,
and advocate the incorporation of conservation measures that will
restore or enhance Tribal trust resources. After consultation with
applicable Tribes and the entity that developed the permit application,
and after careful consideration of the Tribes' concerns, we must
clearly state the rationale for the recommended final decision and
explain how the decision relates to our trust responsibility.
Accordingly:
(a) We will consult with affected Tribes during individual
evaluations of permit applications.
(b) We will treat Tribes on a government-to-government basis during
individual evaluations of permit applications.
(c) We will consider Tribal views during individual evaluations of
permit applications.
(d) We will consult with the appropriate bureaus and offices of the
Department about the identified effects of this rule on Tribes during
individual evaluations of permit applications.
Paperwork Reduction Act
This rule does not impose any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned OMB clearance number 1018-0094. This
rule revises current regulations for programs permitted under 50 CFR
17.22 (c) and (d), and 17.32 (c) and (d). Our current application
approval number, 1018-0094, which expires July 31, 2004, already
accommodates this clarification and the changes associated with this
final rule. Therefore, no change in the approved application forms is
needed. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.
National Environmental Policy Act
We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act (NEPA) and the Department of the
Interior Manual (318 DM 2.2(g) and 6.3(D)). This rule does not
constitute a major Federal action significantly affecting the quality
of the human environment. We have determined that this rule is
categorically excluded under the Department of the Interior's NEPA
procedures in 516 DM 2, Appendix 1, and 516 DM 6, Appendix 1.
Section 7 Consultation
Although these revisions to the regulations will make enhancement
of survival permits associated with Safe Harbor Agreements and
Candidate Conservation Agreements with Assurances easier to obtain,
understand, and implement, it will not change the issuance standards or
the manner in which the Service makes its issuance determinations. In
addition, the Service will continue to consult, under Section 7(a)(2),
or confer, under Section 7(a)(4), as appropriate, on the issuance of
each individual permit. During consultation or conference, the
potential risks to listed or proposed species and designated or
proposed critical habitat areas will be evaluated. Therefore, we have
determined that the present action of revising existing regulations for
section 10(a)(1)(A) permits will not affect listed or proposed species
or designated or proposed critical habitat.
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, Reporting and
recordkeeping requirements, Transportation.
0
For the reasons set forth in the preamble, we hereby amend Title 50,
Chapter I, subchapter B of the Code of Federal Regulations, as set
forth below:
PART 13--[AMENDED]
0
1. The authority citation for part 13 is revised to read as follows:
Authority: 16 U.S.C. 668(a), 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.
0
2. Amend Sec. 13.25 by revising paragraph (b) introductory text,
redesignating paragraphs (c) and (d) as paragraphs (d) and (e), and
adding a new paragraph (c) as set forth below:
Sec. 13.25 Transfer of permits and scope of permit authorization.
(b) Permits issued under Sec. 17.22(b) or Sec. 17.32(b) of this
subchapter B 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 permittee, the deceased permittee's legal representative
and the proposed transferee, provided the Service determines that:
* * * * *
(c) In the case of the transfer of lands subject to an agreement
and permit issued under Sec. 17.22(c) or (d) or Sec. 17.32 (c) or (d)
of this subchapter B, 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.
* * * * *
PART 17--[AMENDED]
0
3. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
4. Amend Sec. 17.3 as set forth below by:
0
a. Revising the definitions of ``Changed circumstances'' and
``Unforeseen circumstances''; and
0
b.Adding in alphabetical order a definition for ``Property owner''; to
read as follows:
Sec. 17.3 Definitions.
Changed circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan or agreement
that can reasonably be anticipated by plan or agreement developers and
the Service and that can be planned for (e.g., the listing of new
species, or a fire or other natural catastrophic event in areas prone
to such events).
* * * * *
Property owner with respect to agreements outlined under Sec. Sec.
17.22(c), 17.22(d), 17.32(c), and 17.32(d) means a person with a fee
simple, leasehold, or other property interest (including owners of
water or other natural resources), or any other entity that may have a
property interest, sufficient to carry out the proposed management
activities, subject to applicable State law, on non-Federal land.
* * * * *
Unforeseen circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan or agreement
that could not reasonably have been anticipated by plan or agreement
developers and the Service at the time of the conservation plan's or
agreement's negotiation and development, and that result in a
substantial and adverse change in the status of the covered species.
* * * * *
0
5. Amend Sec. 17.22 by revising paragraphs (c)(1)(ii), (c)(2)(ii),
(c)(3)(ii),
[[Page 24093]]
(c)(5)(ii), (c)(7), (d)(3)(ii), (d)(5)(i)-(ii), (d)(5)(iii)(B), and
(d)(7) to read as follows:
Sec. 17.22 Permits for scientific purposes, enhancement of
propagation or survival, or for incidental taking.
* * * * *
(c)(1) * * *
(ii) A description of how incidental take of the listed species
pursuant to the Safe Harbor Agreement is likely to occur, both as a
result of management activities and as a result of the return to
baseline; and
* * * * *
(2) * * *
(ii) The implementation of the terms of the Safe Harbor Agreement
is reasonably expected to provide a net conservation benefit to the
affected listed species by contributing to the recovery of listed
species included in the permit, and the Safe Harbor Agreement otherwise
complies with the Safe Harbor policy available from the Service;
* * * * *
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the
Service reasonable advance notice (generally at least 30 days) of when
he or she expects to incidentally take any listed species covered under
the permit. Such notification will provide the Service with an
opportunity to relocate affected individuals of the species, if
possible and appropriate; and
* * * * *
(5) * * *
(ii) The Director and the permittee may agree to revise or modify
the management measures set forth in a Safe Harbor Agreement if the
Director determines that such revisions or modifications do not change
the Director's prior determination that the Safe Harbor Agreement is
reasonably expected to provide a net conservation benefit to the listed
species. However, the Director may not require additional or different
management activities to be undertaken by a permittee without the
consent of the permittee.
* * * * *
(7) Criteria for revocation. The Director may not revoke a permit
issued under paragraph (c) of this section except as provided in this
paragraph. The Director may revoke a permit for any reason set forth in
Sec. 13.28(a)(1) through (4) of this subchapter. The Director may
revoke a permit if continuation of the permitted activity would either
appreciably reduce the likelihood of survival and recovery in the wild
of any listed species or directly or indirectly alter designated
critical habitat such that it appreciably diminishes the value of that
critical habitat for both the survival and recovery of a listed
species. Before revoking a permit for either of the latter two reasons,
the Director, with the consent of the permittee, will pursue all
appropriate options to avoid permit revocation. These options may
include, but are not limited to: extending or modifying the existing
permit, capturing and relocating the species, compensating the
landowner to forgo the activity, purchasing an easement or fee simple
interest in the property, or arranging for a third-party acquisition of
an interest in the property.
* * * * *
(d) * * *
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the
Service reasonable advance notice (generally at least 30 days) of when
he or she expects to incidentally take any listed species covered under
the permit. Such notification will provide the Service with an
opportunity to relocate affected individuals of the species, if
possible and appropriate; and
* * * * *
(5) * * *
(i) Changed circumstances provided for in the Agreement. If the
Director determines that additional conservation measures are necessary
to respond to changed circumstances and these measures were set forth
in the Agreement, the permittee will implement the measures specified
in the Agreement.
(ii) Changed circumstances not provided for in the Agreement. If
the Director determines that additional conservation measures not
provided for in the Agreement are necessary to respond to changed
circumstances, the Director will not require any conservation measures
in addition to those provided for in the Agreement without the consent
of the permittee, provided the Agreement is being properly implemented.
(iii) * * *
(B) If the Director determines additional conservation measures are
necessary to respond to unforeseen circumstances, the Director may
require additional measures of the permittee where the Agreement is
being properly implemented, but only if such measures maintain the
original terms of the Agreement to the maximum extent possible.
Additional conservation 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 Agreement without the consent of the permittee.
* * * * *
(7) Criteria for revocation. The Director may not revoke a permit
issued under paragraph (d) of this section except as provided in this
paragraph. The Director may revoke a permit for any reason set forth in
Sec. 13.28(a)(1) through (4) of this subchapter. The Director may
revoke a permit if continuation of the permitted activity would either
appreciably reduce the likelihood of survival and recovery in the wild
of any listed species or directly or indirectly alter designated
critical habitat such that it appreciably diminishes the value of that
critical habitat for both the survival and recovery of a listed
species. Before revoking a permit for either of the latter two reasons,
the Director, with the consent of the permittee, will pursue all
appropriate options to avoid permit revocation. These options may
include, but are not limited to: extending or modifying the existing
permit, capturing and relocating the species, compensating the
landowner to forgo the activity, purchasing an easement or fee simple
interest in the property, or arranging for a third-party acquisition of
an interest in the property.
* * * * *
0
6. Amend Sec. 17.32 by revising paragraphs (c)(1)(ii), (c)(2)(ii),
(c)(3)(ii), (c)(5)(ii), (c)(7), (d)(3)(ii), (d)(5)(i)-(ii),
(d)(5)(iii)(B), and (d)(7) to read as follows:
Sec. 17.32 Permits--general.
* * * * *
(c)(1) * * *
(ii) A description of how incidental take of the covered species
pursuant to the Safe Harbor Agreement is likely to occur, both as a
result of management activities and as a result of the return to
baseline;
* * * * *
(2) * * *
(ii) The implementation of the terms of the Safe Harbor Agreement
is reasonably expected to provide a net conservation benefit to the
affected listed species by contributing to the recovery of listed
species included in the permit, and the Safe Harbor Agreement otherwise
complies with the Safe Harbor policy available from the Service;
* * * * *
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the
Service
[[Page 24094]]
reasonable advance notice (generally at least 30 days) of when he or
she expects to incidentally take any listed species covered under the
permit. Such notification will provide the Service with an opportunity
to relocate affected individuals of the species, if possible and
appropriate; and
* * * * *
(5) * * *
(ii) The Director and the permittee may agree to revise or modify
the management measures set forth in a Safe Harbor Agreement if the
Director determines that such revisions or modifications do not change
the Director's prior determination that the Safe Harbor Agreement is
reasonably expected to provide a net conservation benefit to the listed
species. However, the Director may not require additional or different
management activities to be undertaken by a permittee without the
consent of the permittee.
* * * * *
(7) Criteria for revocation. The Director may not revoke a permit
issued under paragraph (c) of this section except as provided in this
paragraph. The Director may revoke a permit for any reason set forth in
Sec. 13.28(a)(1) through (4) of this subchapter. The Director may
revoke a permit if continuation of the permitted activity would either
appreciably reduce the likelihood of survival and recovery in the wild
of any listed species or directly or indirectly alter designated
critical habitat such that it appreciably diminishes the value of that
critical habitat for both the survival and recovery of a listed
species. Before revoking a permit for either of the latter two reasons,
the Director, with the consent of the permittee, will pursue all
appropriate options to avoid permit revocation. These options may
include, but are not limited to: extending or modifying the existing
permit, capturing and relocating the species, compensating the
landowner to forgo the activity, purchasing an easement or fee simple
interest in the property, or arranging for a third-party acquisition of
an interest in the property.
* * * * *
(d) * * *
(3) * * *
(ii) When appropriate, a requirement for the permittee to give the
Service reasonable advance notice (generally at least 30 days) of when
he or she expects to incidentally take any listed species covered under
the permit. Such notification will provide the Service with an
opportunity to relocate affected individuals of the species, if
possible and appropriate; and
* * * * *
(5) * * *
(i) Changed circumstances provided for in the Agreement. If the
Director determines that additional conservation measures are necessary
to respond to changed circumstances and these measures were set forth
in the Agreement, the permittee will implement the measures specified
in the Agreement.
(ii) Changed circumstances not provided for in the Agreement. If
the Director determines that additional conservation measures not
provided for in the Agreement are necessary to respond to changed
circumstances, the Director will not require any conservation measures
in addition to those provided for in the Agreement without the consent
of the permittee, provided the Agreement is being properly implemented.
(iii) * * *
(B) If the Director determines additional conservation measures are
necessary to respond to unforeseen circumstances, the Director may
require additional measures of the permittee where the Agreement is
being properly implemented, but only if such measures maintain the
original terms of the Agreement to the maximum extent possible.
Additional conservation 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 Agreement without the consent of the permittee.
* * * * *
(7) Criteria for revocation. The Director may not revoke a permit
issued under paragraph (d) of this section except as provided in this
paragraph. The Director may revoke a permit for any reason set forth in
Sec. 13.28(a)(1) through (4) of this subchapter. The Director may
revoke a permit if continuation of the permitted activity would either
appreciably reduce the likelihood of survival and recovery in the wild
of any listed species or directly or indirectly alter designated
critical habitat such that it appreciably diminishes the value of that
critical habitat for both the survival and recovery of a listed
species. Before revoking a permit for either of the latter two reasons,
the Director, with the consent of the permittee, will pursue all
appropriate options to avoid permit revocation. These options may
include, but are not limited to: extending or modifying the existing
permit, capturing and relocating the species, compensating the
landowner to forgo the activity, purchasing an easement or fee simple
interest in the property, or arranging for a third-party acquisition of
an interest in the property.
* * * * *
Dated: April 12, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-9982 Filed 4-30-04; 8:45 am]
BILLING CODE 4310-55-P