North Florida Ecological Services Office
Southeast Region

2012 FWS-FWC Section 6 Cooperative Agreement

USFWS Transmittal Letter to Florida FIsh and Wildlife Conservation Commission (FWC) - PDF - 688KB

Finding of No Significant Impact (FONSI) - PDF - 85KB

Environmental Assessment - PDF - 528KB

Biological Opinion - PDF - 275KB

Implications for Conservation of Federally-listed species and the Regulated Community - July 19, 2012 USFWS Presentation - PDF - 777KB

2011 Legal Notices and Public Comments on draft Environmental Assessment and attached draft 2012 revised FWS and FWC ESA Section 6 Cooperative Agreement

April 9, 2013, FWC Executive Director Message to Stakeholders and Interested Parties

April 12, 2013, Joint FWS and FWC Response to Tampa Bay Times Editorial


2012 Florida ESA Section 6 Cooperative Agreement
Questions and Answers

Updated: May 11, 2012

What is a Section 6 Cooperative Agreement?

The Endangered Species Act of 1973, as amended [16 U.S.C. § 1531, et seq.] (ESA) recognizes the importance of engaging the states in the Fish and Wildlife Service’s efforts to conserve federally-listed species and their ecosystems and prevent their extinction.  Section 6 of the ESA mandates this cooperative relationship and, under certain circumstances, authorizes the Service to enter into a cooperative agreement with a state in furtherance of species’ conservation.   The Service and the State of Florida first entered into a Section 6 Agreement in 1976, which was renewed annually until 2001, when it was superseded by the Agreement between the Service and the Florida Fish and Wildlife Conservation Commission that was recently amended on May 14, 2012.   

How does the current Section 6 Agreement differ from the previous agreement?

The Agreements differ in two respects as to the Commission’s permitting authority.  First, the current Agreement authorizes the Commission to issue scientific permits for certain federally-listed species without the Service having first issued a 10(a)(1)(A) permit for the same activity, thus eliminating permit duplication  The second and perhaps foremost difference is that the current Agreement also authorizes the Commission to issue incidental take permits for certain federally-listed species under specified circumstances without prior issuance of a Section 10(a)(1)(B) incidental take permit by the Service.  These special circumstances ensure that Commission permits issued under the Agreement will at a minimum be as protective as those issued under the Endangered Species Act and in many instances permits issued under the Agreement should provide for additional conservation.  Thus, the Agreement is consistent with the conservation and recovery focus of Section 6.

What are the legal authorities for the State’s authority to issue such permits?

Entering into the current Agreement was a federal action authorized under section 6(c) of the ESA.  As such, the Service was required to engage in consultation pursuant to section 7 of the ESA before doing so. Additionally, the Service will consult pursuant to section 7 on each species specific Guidance. The Commission is authorized to issue scientific and incidental take permits for federally-listed species via the Service’s section 7 Biological Opinion.  The Commission also is authorized to issue such permits pursuant to Article IV, Section 9 of the Florida Constitution and the Commission’s rules at 68A-27 of the Florida Administrative Code (F.A.C.).

Does the Agreement constitute a delegation of the Service’s authority to issue section 10(a)(1)(B) permits?

No.  The Service retains its full authorities under the ESA.  The Agreement merely eliminates the need for a duplicate incidental take permit from the Service, provided the Commission’s incidental take permit meets the standards of the Agreement.  The standards for permits are articulated in the Agreement.  The Agreement authorizes the Commission to issue incidental take permits only for species for which the parties have prepared species’ Guidelines.  Specific permitting requirements that meet these standards will be contained in permitting Guidelines.  Each set of Guidelines will also be subject to separate NEPA and Section 7 consultation.  If an applicant cannot meet, or elects not to meet, the requirements for a Commission permit, they can pursue an incidental take permit from the Service.  The Agreement does not eliminate the need for the Service to address proposed activities that are neither permitted by the Commission nor covered by the Agreement.  The Service will continue to process applications for incidental take permits under section 10 of the ESA for resident federally-listed endangered and threatened species.

What are the permitting standards for the Commission’s issuance of scientific and incidental take permits pursuant to the Agreement and the State’s rules?

Authorized employees or agents of the Commissions may, when acting in the course of official duties, take or issue a conservation permit authorizing the take of resident Federally-listed endangered species for purposes that are consistent with the Act, Chapter 68A-27, F.A.C. the Cooperative Agreement, and the provisions of any section 6 grant agreement, provided that such taking is not reasonably anticipated to result in: (1) the death or permanent disabling of the specimen; (2) the removal of the specimen from the state of Florida; (3) the introduction of the specimen or any of its progeny into an area beyond the historical range of the species; or (4) the holding of the specimen in captivity for a period of more than forty-five (45) consecutive days.  Section 2.c of the Agreement grants to same authority to the Commission regarding the take of threatened species for conservation purposes.  A scientific or conservation permit is further defined as one that furthers the conservation or survival of the species, including collection of scientific data needed for conservation or management of the species.

The Agreement also authorizes employees of the Commission, when acting in the course of official duties, to issue permits authorizing the take of resident Federally-listed species incidental to and not the purpose of an otherwise lawful activity provided:

The issued permit is consistent with provisions of a species specific permitting Guideline incorporated into the Cooperative Agreement pursuant to the provisions of section 6 of the Agreement;

The species specific Guideline will ensure that: the permit must only address incidental take; the permit must include impact avoidance, minimization and mitigation measures in a manner consistent with the conservation (i.e., recovery) of the species; the permit must have a scientific or net conservation benefit; the permit must provide for adequate funding for conservation measures and procedures to deal with unforeseen circumstances; the permitted activity must have no net negative impact on survival and recovery of the species in the wild; the permit must contain other measures and assurances [e.g., duration of commitments, deed restrictions, monitoring, reporting, performance requirements, etc.] that the Service and/or Commission may require as being necessary or appropriate; the permit must meet any more restrictive conditions required by any subsequent amendments in Federal or State laws and regulations;

  • The permit provisions are enforceable by both the Service and the Commission;
  • The authorized take is not otherwise prohibited by other Federal treaty or statute beyond the Act;
  • The Service has conducted intra-agency consultation pursuant to section 7(a)(2) of the Act on the permitting guideline;
  • The permits will not exceed any incidental take thresholds specified in the intra-Service consultation;
  • The Service has completed the analysis required by the National Environmental Policy Act (NEPA) and noticed the availability of the resultant NEPA document for public comment in the Federal Register;
  • The Commission has provided opportunity for public stakeholder participation in development of its input into the Guidelines;
  • The Commission provides for realtime public access to permit applications, associated information, and permit decisions;
  • The Commission notifies the Service upon receipt of an application and issuance of a permit or provides access to a system that allows for the Service to monitor receipt of an application and issuance of a permit; and
  •  The Commission provides for administrative challenge procedures of its final permit decision per Section 68-1.001; Section 68-1.008; and Chapter 28-106, Fla. Admin. Code.

The permitting standards for issuance of the scientific and incidental take permit are, at a minimum, as protective as those required under the ESA.  The permitting standard for the issuance of incidental take differs, however, in that, unlike the Service’s standard of minimization and mitigation to the maximum extent practicable, the Commission may issue an incidental take permit only if it would provide a conservation benefit to the species. The Service and Commission anticipate that, in many instances, permits issued under the Agreement should provide for additional species’ conservation.

What is the effect on listed species?

Incidental take permits issued by the Commission will, at a minimum, be as protective as those issued under the ESA and in many instances are expected to provide additional conservation for the species.  The standards for permits are articulated in the Agreement.  Specific permitting requirements that meet these standards will be contained in species specific permitting Guidelines.  These Guidelines will provide for avoidance, minimization, and mitigation of impacts to species.  The Guidelines also will incorporate Best Management Practices and will be developed within the context of recovery plans or similar landscape level conservation plans that are designed to provide for the conservation and recovery of the species.  We expect minimization and mitigation measures which, in many instances, may be more extensive than those required by section 10 of the ESA and in locations more valuable for the long term survival of the species.

What are the benefits to the public?

At a minimum, the species Guidelines should allow for state and federal consistency in working with the private sector and other government entities on the conservation of species.  The Agreement is intended to facilitate recovery of species listed under the ESA by influencing the nature, extent, and location of impact avoidance, minimization, and mitigation measures associated with the incidental take permitting process, and to reduce unnecessary duplication of effort.

For applicants, the Commission permit for federally listed species is an option, not a requirement.  Applicants who choose to obtain  an incidental take permit from the Commission  may find the Commission’s process to be faster because the guidelines are developed up front, providing for more predictable outcomes, and compressed review and permit processing timeframes.

How was the public involved in the process that led to the amendments to the Agreement?

The public was extensively involved in the development of the Commission’s revised imperiled species rules at 68A-27.007(1), F.A.C. et seq., through fifteen stakeholder sessions that occurred from February 2008 through July 2010, and three public comment periods:  July 9-24, 2009; August 14-September 9, 2009; and, October 12-November 6, 2009.  There was also opportunity for public comment at Commission meetings in September 2009 and December 2009, as well as at the Commission meeting when the rules were adopted in September 2010.  At the September 2010 meeting, a majority of the public supported the rules.
A draft Environmental Assessment for this Action was published for public review on June 4, 2011.  Following a 45 day extension, the comment period closed on August 19, 2011. Comments received have been incorporated into the amended agreement, as appropriate and/or addressed in the final Environmental Assessment on this proposed action.

Will there be opportunity for public involvement in the future?

Prior to the Commission’s issuance of any such permits for a species, the Service and the Commission must first prepare the species specific permitting Guidelines. The public will be invited to engage in the development of these Guidelines and will be given the opportunity to comment on the National Environmental Policy Act (NEPA) documents associated with each set of Guidelines through notice in the Federal Register. The Commission will also provide real-time public access to permit applications and permit decisions via the Commission’s website.  Commission permits will be available for public scrutiny online and the permits will be processed and subject to challenge in accordance with current state administrative procedures at Section 68-1.001; Section 68-1.008; and Chapter 28-106, F.A.C.

When will the Service and the Commission begin to determine the species for which incidental take may be authorized?

Commission and Service personnel began the planning process in March 2012 to discuss the selection of species for initial development of species specific permitting Guidelines.

What level of oversight will the Service engage in to ensure that the objectives of the amendments are being met and that the Commission is exercising its permitting authority in accordance with the Agreement?

The Agreement provides for any reporting and monitoring needs or other assurances the agencies deem necessary. The Agreement also requires that, pursuant to section 6 of the ESA, the Service periodically, no less than annually, review the Agreement as a whole to assess the State’s conservation program for federally-listed species. The Agreement also contains provisions authorizing the Service to suspend the Commission’s permitting authority and to assess whether Commission issued permits are achieving the desired goals and objectives for the conservation of the species.


2012 FWS-FWC Section 6 Cooperative Agreement

USFWS Transmittal Letter to Florida FIsh and Wildlife Conservation Commission - PDF - 688KB

Finding of No Significant Impact (FONSI) - PDF - 85KB

Environmental Assessment - PDF - 528KB

Biological Opinion - PDF - 275KB

Implications for Conservation of Federally-listed species and the Regulated Community - July 19, 2012 USFWS Presentation - PDF - 777KB

2011 Legal Notices and Public Comments on draft Environmental Assessment and attached draft 2012 revised FWS and FWC ESA Section 6 Cooperative Agreement

April 9, 2013, FWC Executive Director Message to Stakeholders and Interested Parties

April 12, 2013, Joint FWS and FWC Response to Tampa Bay Times Editorial


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Last updated: June 11, 2013