U.S. Fish and Wildlife Service Proposes Streamlining Conservation Agreements and Permitting

Update

On April 10, FLA submitted comments to the U.S. Fish and Wildlife Service regarding this proposal. While we are encouraged by the efforts of the Service to streamline permitting and conservation agreements, we urge the Service to consider additional revisions that would further improve the regulations and help landowners better achieve collaborative species conservation on their land. This included:

• Revising the definition of “baseline conditions” to account for actual conditions on the ground rather than hypothetical scenarios, as well as conditions across the enrolled landscape rather than individual tracts.
• Further streamlining the permitting, planning, and conservation agreement processes by recognizing the benefits of conservation actions and agreements to species not covered under an existing agreement.
• Removing changes to the definition of “covered species” would create confusion and duplicity in the regulations.

Read FLA’s full comments here.

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On February 9, the U.S. Fish and Wildlife Service (USFWS or Service) proposed a rule to revise permitting under Section 10 of the Endangered Species Act (ESA) to make the voluntary conservation agreement process clearer, easier, more efficient.

The goal of this rule is to accelerate the permitting process and encourage more landowners to participate in voluntary conservation programs, thus leading to more species and habitat conservation on the ground. The Service proposes to accomplish this goal by:

 · clarifying the appropriate permit mechanism for authorizing take;

What does this mean? The Service will clarify under which authority it is appropriate to authorize a proposed “take”, either through an enhancement of survival or incidental take permit.

Enhancement of survival permits authorize take of covered species, above the baseline condition, when the primary purpose of the associated conservation agreement is to implement beneficial actions that address threats to the covered species, establish new wild populations, or otherwise benefit the covered species. Incidental take permits authorize take that is incidental to otherwise lawful activities (such as forest management and timber harvest); the conservation actions in the associated conservation plan minimize and mitigate the impacts of the authorized take. Maintaining the distinction between these two permit types will help landowners decide which permit they should pursue, which will reduce confusion and expedite the permitting process.

The proposal also clarifies that these permits do not authorize the covered activities themselves, but instead authorizes only the take of the covered species resulting from those activities. The Service does not have the authority to authorize conservation actions or lawful activities such as timber harvest that may result in the take of the species – those activities are carried out at the discretion of the landowner themselves.

· simplifying permitting options under Section 10 by combining Candidate Conservation Agreements with Assurances (CCAAs) and Safe Harbor Agreements (SHAs) into one agreement type and allowing the option to return to baseline;

What does this mean? The Service proposes regulation changes that combine the SHA and CCAA into one type of conservation agreement, which will be known as a conservation benefit agreement. The goal of this proposed change is to simplify the process for new conservation agreements developed in support of enhancement of survival permit applications.

Applicants for enhancement of survival permits would have the option to return the property to baseline conditions. Providing applicants with a choice whether to return to baseline condition provides more flexibility in the agreements, which is important for landowners when making decisions on their property.

The proposal also clarifies that the Service may issue enhancement of survival permits to authorize both incidental and purposeful take that may occur as a result of implementing beneficial actions under the conservation benefit agreement, such as reintroducing a species to a covered property or capturing and relocating a covered species that may have dispersed to an adjacent property that is not subject to the agreement.

Once these proposed regulations are finalized, the Service will no longer implement the SHA and CCAA policies.

· providing additional flexibility under Section 10 to issue permits for non-listed species without a listed species also on the permit; and

What does this mean? The proposal clarifies that enhancement of survival and incidental take permits can be issued for non-listed species without including a listed species on the permit. The permittee would begin implementing the conservation commitments for the non-listed covered species, but the take authorization would not go into effect until the non-listed species became listed. This approach encourages conservation of fish and wildlife before species become depleted to the point that they require listing.

· clarifying the requirements for complete applications under both permitting authorities.

What does this mean? The Service proposes to incorporate portions of the existing five-point policies for safe harbor agreements, candidate conservation agreements with assurances, and habitat conservation plans into the regulations to reduce uncertainty and streamline the process for completing permit applications. This will also include clarifications to help landowners navigate the application process, such as a description of the requirements for a complete incidental take permit application and revisions to the corresponding incidental take permit issuance criteria.

The proposal also clarifies the process to renew, amend, or transfer permits. Providing these clarifications will reduce confusion and lessen the burden on permittees, thereby expediting these processes.

The proposal will not require that any previous permits issued under section 10(a)(1)(A) or (B) be reevaluated when this rule is finalized. However, future applications for new permits, renewals, or amendments would be subject to the revisions in the final rule.

“It’s more important than ever to incorporate the knowledge gained from working with landowners and conservation partners in developing and permitting voluntary conservation agreements,” said Service Director Martha Williams. “These improvements will assist landowners who want to manage their lands and undertake development activities while also implementing conservation efforts for species that need help.”

“We have made great strides in collaborative conservation since the Endangered Species Act was established 50 years ago, and this proposal is a testament to how far we’ve come.” said FLA Director of Stewardship Initiatives and Regulatory Affairs, Katie Moss. “We’re encouraged by the direction that the Service is taking to streamline the permitting process and make it easier for landowners to collaborate on species conservation.”

FLA is preparing public comments, which are due April 10. We will update this article when comments are finalized.

Read the Service’s announcement here.