[Federal Register: July 31, 2008 (Volume 73, Number 148)]
[Notices]
[Page 44761-44772]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy08-70]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-R9-ES-2008-N00166; 92220-1112-0000-FY08-EA]
Endangered and Threatened Wildlife and Plants; Recovery Crediting
Guidance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of guidance to promote implementation of the Endangered
Species Act. The guidance describes a crediting framework for Federal
agencies in carrying out recovery measures for threatened and
endangered species. The text of the guidance is included in this
notice. Under the guidance, Federal agencies may show how adverse
effects of agency activities to a listed species are offset by
beneficial effects of actions taken elsewhere for that species. The
combined effects of the adverse and beneficial actions must provide a
net benefit to the recovery of the species.
ADDRESSES: The guidance may be downloaded from our Web site at http://
www.fws.gov/endangered/policy/june.2008.html. To request a copy of the
guidance, write to U.S. Fish and Wildlife Service, 420 ARLSQ,
Washington, DC 20240, Attention: Recovery Crediting; or call 703-358-
2171. You may also send an e-mail request to recovery_
crediting@fws.gov. Specify whether you wish to receive a hard copy by
U.S. mail or an electronic copy by e-mail.
FOR FURTHER INFORMATION CONTACT: Direct all questions or requests for
additional information about the guidance to Dr. Richard Sayers,
Division
[[Page 44762]]
of Consultation, Habitat Conservation Planning, Recovery, and State
Grants, U.S. Fish and Wildlife Service, 420 ARLSQ, Washington, DC 20240
(703-358-2171). Individuals who are hearing-impaired or speech-impaired
may call the Federal Relay Service at 1-800-877-8337 for TTY
assistance, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Background
The ultimate goal of the Endangered Species Act of 1973, as amended
(ESA) (16 U.S.C. 1531 et seq.), is the recovery of endangered and
threatened species and the ecosystems on which they depend. In
administering the recovery provisions of the Act, the Service
collaborates with many partners, including Federal, State, and local
agencies, Tribal governments, conservation organizations, the business
community, and private landowners.
Effective recovery planning and implementation depend in part on
creative processes and agreements with Federal partners as well as
other non-Federal partners in community-based recovery efforts.
Examples of innovative conservation tools under the ESA include safe
harbor agreements, habitat conservation plans, recovery permits, and
conservation banks. The ultimate success of conservation and recovery
of endangered and threatened species depends on a variety of
innovations, such as these, that may be used in concert with one
another or alone. We expect recovery credit systems (RCS) to complement
them further. Additional information concerning these tools is
available through the sources listed above under ADDRESSES.
The recovery credit approach provides Federal agencies with an
additional recovery tool developed using existing authorities. As
described below, this tool was initially established in Texas to allow
Fort Hood Military Reservation to accrue credits for recovery measures
that it arranged by contract with neighboring landowners. The type of
arrangement we developed with Fort Hood can be applied by other Federal
agencies that may obtain credit for advancing the recovery of a listed
species, and this credit may be expended, or debited, to offset
potential adverse effects of future actions. A recovery crediting
system can allow a Federal agency to accrue credit for recovery actions
in advance of effects resulting from any specific action that causes
adverse effects. We expect this process to increase incentives for
Federal agencies to use their authorities to further the purposes of
the ESA.
Under section 7 of the ESA, the Fish and Wildlife Service conducts
consultations with Federal agencies to advise them whether their
actions are likely to jeopardize listed species or adversely modify
critical habitat. Each Federal agency has a duty under section 7(a)(1)
to use its authorities to further the purposes of the ESA by carrying
out programs for the conservation of listed species. The Service and
cooperating agencies can employ the consultation process to review
agency programs and verify that they promote the recovery of one or
more listed species. These consultations may establish a basis for
adoption of RCS. In the discussion of procedures for consultation on an
RCS, additional language has been inserted to note that action agencies
should expressly state what the net benefit to recovery will be for the
relevant species and how the proposed RCS will satisfy that standard
(see section III.C.).
The Service recognizes that recovery crediting is a particular
mechanism within the broad concept of habitat credit trading. The
Service may expand other types of crediting to entities other than
Federal agencies or employ additional methods for Federal agencies.
That is, we may be able to use credits as a measure of the benefit of
recovery actions taken on Federal lands, and we may consider other
credit trading systems, including conservation banks, for landowners
who take recovery actions on their own land or other private lands.
However, the guidance being adopted herein applies only for Federal
agencies to accrue credits on non-Federal lands.
Viewing Documents
On November 2, 2007, we published in the Federal Register (72 FR
62258) a notice of availability and the complete text of draft guidance
on RCS. An initial 30-day public comment period was opened at that time
and subsequently re-opened for an additional 60 days, until February
25, 2008 (72 FR 73351, December 27, 2007).
The complete file for the recovery crediting guidance as well as
the comments and materials we received are available for inspection, by
appointment, during normal business hours at the Division of
Consultation, Habitat Conservation Planning, Recovery, and State
Grants, Room 420, 4401 North Fairfax Drive, Arlington, VA 22203-1601.
Summary of Comments and Recommendations
State and Federal government agencies, nongovernmental
organizations, and private individuals responded to our notice. In all,
we received comments from more than 60 respondents. Some simply
expressed support for or opposition to the concept of recovery
crediting; others made more specific observations and recommendations.
The latter were grouped thematically and are organized by category
below with our responses.
Category 1--Level of Specificity
Issue 1. While some respondents supported the avoidance of
specificity in the guidance, others recommended providing greater
detail, particularly with respect to determining net conservation
benefit, the valuation of credits, eligibility of species, and
crediting and debiting standards and procedures. One respondent
recommending greater detail in the guidance also recommended that we
undertake a series of pilot projects to test the RCS concept and
consider carrying out the guidance through adoption of a regulation.
Some pointed to climate change as a specific widespread threat to
species that should be accounted for in developing RCS.
Response 1. Our responses to suggestions for greater specificity on
particular issues are presented under the discussion of those issues.
Generally, we believe that it is necessary, particularly at this stage
in the development of RCS, to strike a balance between clearly
expressing the principles governing the mechanism and allowing
individual RCS to adapt to local conditions and needs. A series of
carefully monitored pilot projects may provide a basis for
incorporating greater detail in a future iteration of this guidance or
replacing it with a regulation.
With respect to the valuation of credits, we anticipate that a
variety of quantitative measures may be employed under the guidance in
different situations, such as number of individuals of a species,
density of individuals over some measurable area, quantity of habitat
displaying given characteristics, volume of flow in a given aquatic
system, etc. In some cases it may also be possible to establish
equivalencies between different measures. For example, habitat that is
relatively abundant could be debited against scarce habitat of
different character that requires restoration to promote recovery.
Climate change is one of the widespread effects (such as invasive
species) that may be appropriate to consider on a case by case basis.
[[Page 44763]]
Category 2--Adequacy of/Appropriateness of the Net-Benefit Standard vs.
Contribution To Recovery
Issue 2a. Many respondents were concerned about the application of
the net-benefit standard. Following is a summary of those concerns and
our responses:
``Net conservation benefit'' should be clearly and consistently
defined in the guidance. This terminology should be consistently used
throughout the guidance to avoid confusion and misapplication.
Response 2a. We agree and have revised our terminology. Because
``net conservation benefit'' has been applied with respect to other
policies, such as the Safe Harbor policy, and the RCS process applies a
different standard to Federal agencies through the ESA section 7
process, we have revised our language to refer consistently to the term
``net benefit to recovery,'' which is now defined in section I. C. of
the final guidance.
Issue 2b. Some respondents contended that the draft guidance fails
to set firm guidelines for ensuring a net conservation benefit; that
the standard is too weak, and should be replaced by a stronger recovery
standard; that the focus of the document is enabling Federal agencies
to find new ways to mitigate the habitat destruction resulting from
their activities; or that the practice of merely agreeing to avoid
destruction of existing habitat should be discouraged as there would be
no net gain.
Response 2b. Our intent for this guidance is that its
implementation will provide greater flexibility and increased
opportunities for Federal agencies to implement their responsibilities
under section 7(a)(1) of the ESA, to enhance the recovery of listed
species. We have attempted to clarify this intent by revising our
terminology in the guidance by defining ``net benefit to recovery'' and
consistently refer to a ``net benefit to recovery'' rather than a ``net
conservation benefit''.
Issue 2c. An RCS should generally be available over the full range
of the species to provide maximum flexibility--differences in habitat
quality should be reflected in the definition of the credit for that
species.
Response 2c. We agree that in most cases where it is appropriate to
develop an RCS, credits should be available throughout the species'
range, and habitat credits valued appropriate to the relative
importance of the habitat to recovery. It is important to note that
recovery credits may be accrued for recovery actions other than habitat
protection--they could be applied to needed research, management, or
outreach actions, for example.
Issue 2d. Placement of an RCS should be focused on the benefit to
species recovery and not proximity to public land. Listed species are
more prevalent on private land.
Response 2d. The focus of recovery credits is on benefits to the
species. In terms of habitat credits, proximity to public lands may
well be important for some species because public lands often take the
form of large tracts of land that will be protected from fragmentation
and development in perpetuity. Because habitat connectivity is often of
critical importance, private lands near large tracts of public lands
may contribute more to connectivity than isolated tracts of private
lands. This does not in any way discount the importance of private
lands to the conservation and recovery of endangered species.
Issue 2e. Actions qualifying for a recovery credit should be
measurable and outcome-based. A demonstrated positive response by the
population of the target species in the area affected by the action
should be the litmus test for evaluating the effectiveness or assigning
a value to a recovery credit.
Response 2e. We agree. The standard of using current recovery plans
or an equivalent, Service-approved document, which must tie the
recovery criteria and recovery actions directly to addressing the
threats to the species, should assure that recovery credits are based
upon measurable, outcome-based actions.
Category 3--Expanding Scope
Issue 3a. Who can participate in Recovery Crediting Systems?
Response 3a. Under this guidance, recovery credits can only be
established through an ESA section 7 consultation. The use of recovery
credits is therefore limited to Federal action agencies, and only
Federal action agencies may accrue, hold (bank), and use (debit)
recovery credits. That does not mean that non-Federal entities cannot
participate in the RCS process where appropriate. It is also important
to note that other entities may be involved in consultation or acting
on behalf of a Federal action agency and they may engage and
participate in the recovery credit process and the consultation process
as appropriate. Consultation is a responsibility of all Federal
agencies, and the Federal action agency (a single Federal entity) is
ultimately responsible for the accrual, use (debiting), and accounting
of recovery credits. Other entities, Federal or non-Federal, may
participate in RCS as appropriate, but a non-Federal entity cannot
accrue, hold (bank), or use (debit) recovery credits.
Issue 3b. Is the recovery credit process limited to federally
listed species only?
Response 3b. Yes, RCS are limited to federally listed species
because the authority for establishing and using an RCS is the ESA's
section 4(f) and section 7(a)(1), both of which apply only for listed
species. The draft guidance clearly stated that recovery crediting is
an optional process for a Federal agency to use its authorities to
promote the conservation of listed species.
Category 4--Comments on the Use of Federal Lands
Issue 4a. Are recovery credits limited to actions on non-Federal
lands or can credits be accrued from recovery activities on Federal
lands? Several respondents noted that RCS should place a priority to
carry out recovery actions and thus accrue recovery credits on Federal
lands and, since the impacts are occurring on Federal lands, the
impacts must be mitigated on Federal lands. One commenter noted that
State or private lands should be used only as a last resort to mitigate
for impacts on Federal lands.
Response 4a. The draft guidance stated that ``a recovery credit
system is a specific program established to provide recovery actions on
non-Federal lands for specific species while creating a bank of credits
that a Federal agency may use to offset the effects of its actions.''
Only conservation that occurs on non-Federal lands can be counted as
recovery credits.
The Service supports the mitigation of impacts using either Federal
or non-Federal lands. As noted above, recovery credits were intended to
promote the recovery of listed species on non-Federal land and to
offset adverse effects to listed species from proposed Federal actions.
Issue 4b. There was concern that the program could ultimately lead
to the long-term degradation of Federal lands and a transfer of
valuable fish and wildlife resources from lands held in public trust to
private reserves. Respondents also recommended that Federal agencies
strive to seek additional incentives to minimize loss of threatened and
endangered species and their habitats on Federal lands. It was also
noted that the full force of the Endangered Species Act does not apply
on private lands, and that Federal activities on public lands should
rarely, if ever, result in the net loss of habitat for listed species.
Response 4b. Federal agencies are mandated under section 7(a)(1) of
the ESA to use their authorities to further
[[Page 44764]]
the conservation of listed species. Recovery crediting is simply one
tool that agencies may use in order to do so, and will not be
appropriate in all situations. Because public lands often provide
extremely valuable large tracts of protected habitat, it will be
incumbent upon the Service and an action agency to assure in each RCS
established that any debiting action on Federal lands does not lead to
long-term degradation of habitat for listed species, but in fact
enhances the recovery of the species through additional private
partnerships and other recovery actions. Credits could potentially be
applied to actions on other public lands, as well as State or private
lands. Recovery debits on Federal lands must be valued against a net
benefit to recovery standard for any credit on private lands. This must
include assurance of equivalent protections for the species on private
lands and a net benefit, not an even trade of debits for credits.
Issues of habitat size, quality, and connectivity must be considered,
and Federal lands will continue to play a major role for most species.
Category 5--Temporary vs. Permanent Credits
Issue 5. Several respondents expressed concern over the concept of
temporary credits, while others supported the exchange of temporary
credits for temporary impacts. Some respondents did not believe the
guidance provided enough information concerning the use and/or
determination of temporary versus permanent credits. Concerns included
the inadequacy of achieving species needs in the short term, lack of
specific standards for in-perpetuity protection, and the use of
temporary credits for outreach and research that could be traded for
habitat impacts. A few comments recommended that only permanent credits
be allowed, much like the situation in conservation banking, with even
temporary impacts offset through a permanent credit system. One
respondent questioned the manner in which temporary effects were
quantified for the Fort Hood pilot project and how it could be applied
to a national model.
Response 5. The Service has not attempted to outline specific
details on what may constitute a ``temporary'' or ``permanent'' impact
because of the multitude and range of direct and indirect effects that
may occur from a variety of Federal actions. Such an attempt would
ultimately fall short of capturing the concept of temporary or
permanent credits. Instead, we believe the nature of effects are best
described during formal consultation, which requires a detailed effects
analysis of the specific Federal action on listed species. We agree
that, in most cases, the impact must be commensurate with the credit
(while providing a net benefit to recovery), which is how the pilot
project at Fort Hood is modeled. However, we do not want to preclude
the inclusion of any recovery tasks (e.g., research, public outreach)
that are necessary for delisting or downlisting of the target species
in the development of RCS. The decision on the appropriate credit
exchange, as well as the value of credits, would be made through the
development of specific RCS. Thus, the guidance is intentionally
general in outlining the concept of recovery crediting and does not
rely on specific aspects from the pilot project at Fort Hood, which is
still in the development phase.
Both temporary and permanent credits may be necessary components of
an RCS. Using permanent credits to offset both temporary and permanent
impacts is not precluded under this guidance, but developing
appropriate temporary credits adds incentives for furthering the
recovery of listed species. Because of the net benefit to recovery
standard for crediting, temporary credits must provide a measurable
contribution to the recovery of the target species.
Category 6--Role of the States
Issue 6. The Service received several comments from State natural
resources agencies and other interested parties on the importance of
and status of the States in working with the Service on recovery of
listed species under the ESA. In addition, the comments stressed three
elements in creating a functional RCS. First, that States, given their
status under section 6 of the ESA, have a direct need to work in a
collaborative partnership with the Service to develop an RCS and share
the responsibility to ensure that an RCS works in partnership with
Federal agencies, States, private landowners, Tribes, land trust
organizations and other partners and stakeholders. Second, several
State interest comments advocated that the Service create a science
team to further develop this guidance, review other recovery or
conservation tools, such as conservation banking, and then develop more
detailed guidance for the Service to review in public comment. Third,
several respondents recommended that the Service, in partnership with
the States and other national partners, monitor a few pilot recovery
credit projects first, review these with a national team, and then
develop more credible RCS guidance.
Response 6. The Service agrees that the States play an important
role as our conservation partners under section 6 of the ESA and other
Federal fish and wildlife conservation laws. Each State was required to
develop a State Wildlife Action Plan by October 2005 and implement its
plan, with Service approval, by January 2007. These plans are now in
place. Several Memoranda of Understanding (MOU) between the Service and
the States and other partners reflect the importance of the States'
role in conservation of listed species and other species at risk.
The Service expects that appropriate scientific advisory groups
will be formed to assist in the development of individual RCS, and will
be capable of evaluating these systems as they are carried out. We
decline to establish a national science team at this time, but may do
so in the future if we determine that it is warranted, and may provide
more informed detailed guidance at that time.
Category 7--Scope and Transfer or Interstate Trading
Issue 7a. One respondent asked whether recovery credits be accrued
in one portion of a species' range and used in another portion of a
species' range that may be some distance away.
Response 7a. Appropriate credits may be accrued and used anywhere
within a species' range. However, as discussed in the draft guidance,
recovery plans, State plans and other guiding documents or groups, such
as a recovery team, science or biology workgroup, etc., may prioritize
particular areas for credit accrual and/or use based on the needs of
the species.
Issue 7b. One respondent inquired whether credits should be
transferable or traded among entities.
Response 7b. The draft guidance clearly stated, ``Circumstances may
arise in which a Federal agency may opt to sell or transfer banked
credits to another agency.'' Federal agencies may trade, transfer, or
sell recovery credits to another Federal agency in accordance to the
agencies' scopes of authority. The Service does not usually participate
in how a Federal action agency implements aspects of a consultation,
such as carrying out activities described in a biological assessment or
a biological opinion. If a Federal action agency contracts with a non-
Federal entity or with another Federal entity to accomplish
conservation actions for listed species, the Service may not be aware
of or involved in that process. The Service's role is work with the
action agency and the action as it is presented to us in the
consultation
[[Page 44765]]
process. The Service will examine credits and their availability for
use during the consultation process and issue a biological opinion. The
origin of the credits is not a concern for the Service. Put simply, the
transfer or trading of credits among Federal agencies is acceptable,
however, the Service will not engage in negotiation or trading
activities among Federal agencies or their surrogates. The Federal
action agency must accurately account for all credits and debits it
offers to use during the consultation process, and the Federal action
agency is ultimately responsible for all subsequent accounting and
tracking of recovery credits.
Since State agencies and private entities do not have a
consultation responsibility, there is no basis for them to design or
implement an RCS without the involvement of a Federal action agency.
Under this guidance, only RCS involving Federal agencies will be
recognized by the Service during the consultation process.
Category 8--RCS and Other Recovery Mechanisms (e.g., Conservation
Banks)
Issue 8. Several respondents noted similarities or differences
between this guidance and the Service's conservation banking guidance
issued in 2003 (68 FR 24753, May 8, 2003). Some considered conservation
banking to be a superior method of protecting habitat with an
established record of success, and recommended that RCS be abandoned in
favor of conservation banking. Others recommended that a clear
distinction be drawn between the two mechanisms, or that RCS be held to
the same standards that apply for conservation banking, such as in-
perpetuity protection, legally binding commitments, non-wasting
endowments, and conservation easements. One respondent characterized
RCS as potentially providing the functional equivalent of conservation
banking. One respondent recommended that the Service examine the
economic effects that establishment of RCS would have on the
conservation banking industry. One submittal included a cost-benefit
analysis supporting lower costs associated with recovery crediting in
the Fort Hood area as compared to habitat protection through easement
or acquisition.
Response 8. We appreciate the conservation value provided by
existing conservation banking arrangements, and in fact described RCS
as a complement to conservation banking in our November 2, 2007,
notice. We do not intend to establish recovery crediting as an
alternative to other conservation measures that are already playing a
role in conserving species, but rather to serve in situations that lend
themselves to the particular features of recovery crediting. The most
apparent distinguishing characteristics of recovery crediting are the
possibility of encumbering property on a less than permanent basis and
of protecting habitat in a dispersed array over a landscape. Some
landowners may find non-permanent arrangements more attractive than
conventional banks, and thus be induced to participate where they might
not otherwise. The potentially dispersed nature of habitat covered by
an RCS will demand vigilance on the part of the Service and its
cooperators to avoid excessive habitat fragmentation. We do not plan to
examine the economic effects of recovery crediting on conventional
conservation banks, as we believe that doing so at this time would be
excessively speculative. In a similar vein, it may not be valid to
compare conservation measures through cost-benefit analyses because of
the differing nature of the benefits provided by the various measures.
In this context, we note that the Army has contracted for a study
examining return on investment for the Fort Hood crediting system.
Category 9--Adequacy of RCS Based on Documents Other Than Recovery
Plans
Several respondents were concerned about whether documents other
than recovery plans should be used as the basis for an RCS. Following
is a summary of those concerns and our responses:
Issue 9a. Acceptable documents should be more completely described.
Response 9a. We agree that what constitutes an acceptable document
should be well defined. We have added language under section III.B.,
``planning and development phase'' that more clearly defines acceptable
documents.
Issue 9b. Documents should not be limited to those that are
approved by the Service, even when recovery plans are available.
Response 9b. Section 4(f) of the ESA requires the Service to
develop and implement recovery plans for listed species. Because an RCS
must be based upon clearly identified actions that will address threats
to the species, and that will contribute to its recovery, these actions
should be part of a Service-approved document. However, that Service-
approved document may be a conservation plan or framework, or include
recommendations within a 5-year review that meet the standard of
addressing threats and contributing to recovery of the species. Actions
so identified in an RCS would be treated on the same basis as those in
a current recovery plan.
Issue 9c. Recovery credits should be based only upon approved and
current recovery plans, and the Service should prioritize developing or
updating plans before implementing an RCS. Documents other than
recovery plans referenced in the draft guidance may be insufficient to
provide the necessary recovery tasks and measures to ensure a net
benefit to recovery, or may be inadequate in their public
participation. The guidance should include language that requires the
recovery plan or equivalent conservation plan for a target species to
be up-to-date and contain the best scientific data available.
Response 9c. We agree that a current recovery plan would generally
be the best source for developing an RCS, and that it should be the
generally applicable standard. The Service is working to streamline its
processes for revising and updating recovery plans, and will consider
the need for prioritizing those species for which an RCS might be
beneficial. However, in some instances, it may be appropriate to
utilize information from a Service-approved conservation plan or a
recent 5-year review to develop an RCS with the best available
scientific information on the needs of the species. We have added
language under section III.B., ``planning and development phase'', that
more clearly defines acceptable documents and how they should be used.
Issue 9d. Recovery plans are flawed and will not likely lead to
recovery, so recovery credits should not be based upon them.
Response 9d. Recovery plans are developed with the participation of
our partners in the scientific community as well as our partners in
implementation and represent the best available science as applied to
addressing the threats to species and their ultimate recovery. Recovery
plans are one of the most important tools we have to ensure sound
decisionmaking in the implementation and tracking of species recovery.
Category 10--The Role of Monitoring
Issue 10. We received numerous comments concerning responsibility
and accountability for monitoring of RCS. Some believed the Service
should oversee all monitoring plans and accounting of credits and
debits. Some suggested that monitoring data should be equally shared
among all stakeholders, while others recommended that an independent
third party conduct monitoring to provide confidentiality assurances to
private
[[Page 44766]]
entities participating in the system. Other comments suggested the
Service's 5-year review process was inadequate to monitor the
contribution of RCS to the status of target species. One respondent
believed Federal agencies should not monitor their own systems due to
the potential overlap of credits between two or more agencies. Several
expressed concerns about funding shortfalls, including the ability for
the Service to allocate funding and the costs to private entities for
monitoring. Two comments believed the guidance should outline a
remedial process for problems identified through monitoring (e.g.,
failure of credit to produce benefits).
Response 10. The Service intends to play an active role in all
aspects of RCS development and implementation. The draft guidance may
not have stated the Service's role as plainly as possible, but it was
our intent that an oversight function would occur under credit accrual
through ``sanctioning'' the credit, and under the debit process through
a biological opinion. We have revised those sections to clarify the
Service's role. We also believe that monitoring should be coordinated
among our Federal and non-Federal partners in order to ensure a
rigorous and transparent monitoring and reporting process. We agree
that all stakeholders committed to participation under an RCS should be
full partners and share equally in the information generated from
monitoring. We also agree that an independent third party is acceptable
for implementation of a monitoring plan. However, the prospect of
granting assurances for some participants to remain anonymous is not
within the Service's authority. Further, the Service believes that a
monitoring plan that conceals certain information from certain
participants would not adequately provide checks and balances in the
system and would undermine the concept of Cooperative Conservation. The
Service has experienced this situation through the pilot project at
Fort Hood. Certain confidentiality assurances developed in the pilot
have created challenges to the effectiveness monitoring process, which
resulted in an individual funded project failing to produce credits.
The Service agrees that funding for monitoring and reporting is an
important issue for a properly functioning RCS. In the guidance, we
acknowledge the lack of resources within our agency to implement many
recovery actions for listed species. For these reasons, the guidance
invites participation from all potential stakeholders--Federal, State,
private and nongovernmental--to produce a more effective system and
pool resources to ensure success. In this way monitoring plans can be
developed and collaborated among participants, as expertise and
resources allow, to meet the goals and objectives of each particular
system.
The Service agrees that a process for corrective action or
remediation based on feedback from monitoring should be developed
within an RCS. However, it would be ineffective to generalize such a
process in the guidance. Rather, those processes are best developed on
a system-specific basis.
Category 11--Military Related Comments
Issue 11. The Service received a few comments from within the
Department of Defense (DoD) and from other respondents on the role of
the military working in partnership with the Service, States, private
landowners, and other partners in developing potential RCS. Comments
stressed four elements in creating a functional RCS:
First, that any credit-debit system must support a military
installation in protecting its military mission and must allow
flexibility for the target species' conservation with partners.
Second, the guidance should refer to Integrated Natural Resources
Management Plans (INRMPs) as examples of Service-approved documents
that could serve as the basis for developing an RCS on a military
installation.
Third, given the unique nature of the DoD and challenges it engages
in carrying out its core military missions and in meeting its
obligations under the ESA, that there are unique opportunities to
conduct initial pilot projects combined with the DoD's Range and
Environmental Protection Initiative (REPI).
Fourth, DoD manages some 25 million acres of land on military
installations that support multiple training needs across a wide
geographical area, while maintaining a diversity of ecosystems and
endangered species, creating a need for further collaborative conflict
resolution over land use and endangered species conservation and
recovery across those landscapes with private landowners, and other
Federal, State, Tribal, and local government and other nongovernmental
partners.
Response 11. Some of the best examples today of endangered species
conservation partnerships involve military installations around the
nation. The Fort Hood pilot project is an example of two themes
expressed in many of the comments. First, that the Service, the States,
and other conservation partners should focus on the lessons learned
from this pilot in applying it elsewhere and that it is only one
example of a system we expect to help shape the guidance in the future.
Second, that there are other potential pilot projects that may involve
military installations, depending on the endangered species and
potential applicability of an RCS that benefits the species, the
military, and other partners.
The Service agrees that there is potential that some INRMPs being
implemented at military installations can serve as recovery tools for
certain endangered species, in tandem with recovery plans, State
Wildlife Action Plans, and other conservation plans that target the
species. The Sikes Act mandates that each military installation
develop, implement, and revise an INRMP where significant natural
resources occur on military lands with the mutual agreement by its two
primary conservation partners, the Service and the appropriate State
fish and wildlife agency. The Service acknowledges that the tri-partite
MOU between DoD, the Service, and the Association of Fish and Wildlife
Agencies (AFWA) for a Cooperative Integrated Natural Resources
Management Program on Military Installations is a key agreement for
cooperative conservation on military lands. INRMPs that include active
conservation and management initiatives for endangered species can
contribute to the recovery of a species. Supporting military
installations' conservation efforts is a concerted effort by the DoD,
the four Military Services, the DoD Legacy Management Program, the DoD
REPI Program, the DoD Partners in Flight Program, the National Military
Fish and Wildlife Association, and the Association of Fish and Wildlife
Agencies. Other supporting MOUs are key to potential military
installation--private landowner--State agency lands--other Federal
lands conservation partnerships. These include the 2006 MOU between
USDA, Natural Resources Conservation Service, the Service, and the AFWA
to strengthen cooperation among the parties to proactively conserve
plant and animal species-at-risk and their habitats, to foster the
recovery of listed species, and address similar needs for State species
of concern. A similar 2007 MOU exists between the DoD and the Service
for bat conservation.
The Service agrees with the comment about the unique nature of
DoD's military mission and the challenges it faces in carrying out its
core mission while meeting its obligations under the ESA, and that
there are various
[[Page 44767]]
opportunities to conduct initial pilot projects elsewhere in the nation
combined with certain DoD conservation programs. As noted above,
military installations, the Service, and the States work as
collaborative partners under the Sikes Act and the tri-partite MOU at
several installations and are promoting further collaborative
partnerships with private landowners, State lands, other Federal
agencies, Tribes, nongovernmental organizations, and other partners in
the recovery of endangered species found on military lands and adjacent
lands. The DoD conservation programs such as the DoD Legacy Program,
the DoD REPI, and the DoD Partners in Flight Program are conservation
tools that DoD uses effectively with conservation partners on
endangered species, fish and wildlife, and other natural resources. As
noted in the Service's response to comments under the Role of States,
carrying out an effective RCS may lead to establishment of national and
project-level science teams that can guide and target endangered
species recovery actions. The Service recognizes a need to invite the
DoD and military services to be represented on any future national
science team. In any case where the military installation may be part
of a potential pilot RCS, it is key that the military installation
natural resources staff represent the military on a local science team
to steer a pilot project with the Service, State, and other partners.
The Service also acknowledges that DoD and the four military
services have balanced sustaining the military readiness mission with
stewardship of natural resources including endangered species over a
diverse range of ecosystems in the nation. DoD, the Service, and the
States work on several conservation partnership teams to bring
conservation resolution out of potential conflicts
Category 12--Critical Habitat
Issue 12. A variety of opinions were offered in response to our
solicitation of comment on the relationship of RCS to critical habitat.
One respondent recommended that there be no specific link between the
two. Others suggested that areas covered by an RCS should not be
designated as critical habitat, that existing designations be removed
for areas covered by an RCS, that existing critical habitat be accorded
high value for RCS coverage, or that RCS coverage be given explicit
preference over critical habitat designation as a means of promoting
conservation.
Response 12. We have declined to attempt articulating any explicit
relationship between RCS and critical habitat at this time. Given the
wide range of opinion expressed and the relatively broad discretion we
are afforded by the ESA in designating critical habitat, we believe
that a relation between the two, if any, is most likely to arise in the
context of future RCS applications and specific designations.
Category 13--Legal Issues
Issue 13a. Several respondents asserted that RCS would allow
agencies to exceed their existing Congressional mandates under the ESA
and other statutes.
Response 13a. RCS do not expand the authorities of the Service or
the cooperating agencies.
Issue 13b. One respondent asserted that the Service is ``literally
authorizing increased endangered and threatened species take and
habitat destruction/degradation'' with RCS.
Response 13b. This guidance does not authorize any take or habitat
destruction. As plainly set out in the guidance, any actions taken
under the guidance would be subject to section 7 consultation. It is
the issuance of a future biological opinion with an incidental take
statement that authorizes any take. Further, any action that may affect
critical habitat would be subject to consultation as well.
Issue 13c. One respondent ``reject[ed]'' the authority of the
Service to ``weaken the section 7'' consultation process by creating
RCS that promote the take of species or the degradation of their
habitat.
Response 13c. The respondent misunderstands the premise of section
7(a)(2). The ESA allows action agencies to take species and impact
critical habitat if, after consultation with the Service, it is
determined that those actions are not likely to jeopardize listed
species or adversely modify or destroy critical habitat. Actions taken
under an RCS will be subject to section 7 consultation. Further,
because RCS require a net benefit to the recovery of the species
concerned, there is no weakening of their section 7(a)(1)
responsibilities.
Issue 13d. One respondent questioned what would happen if a
landowner were not in compliance with an agreement.
Response 13d. As with any Federal agency action subject to
consultation under section 7, an action taken under an RCS would be
governed by the reinitiation clause of the section 7 regulations (50
CFR 402.16). That is, the Federal action agency would be required to
reinitiate consultation if the action being implemented causes effects
to the species that were not considered during the consultation.
Issue 13e. One respondent asserted that Federal agencies cannot
take actions that are likely to jeopardize listed species even if they
have taken ``previous actions that have been demonstrably effective in
promoting that species' recovery.''
Response 13e. We agree that action agencies cannot lawfully take
actions that are likely to jeopardize listed species. Under an RCS,
however, an action could not lead to jeopardy because the RCS must
demonstrate a net benefit to recovery. Furthermore, the regulations
implementing section 7 specifically speak to this point (see 50 CFR
402.14(g)(8)).
Guidance
The text of the guidance follows:
Guidance on Recovery Crediting for the Conservation of Threatened and
Endangered Species
I. Introduction
A. Purpose and Scope of Guidance
This document is intended to provide guidance on the development,
management, and use of recovery credits as a measure for mitigating
adverse effects to and contributing to the recovery of species listed
as threatened or endangered under the Endangered Species Act of 1973,
as amended (ESA). The guidance should assist Service personnel in
determining the applicability of recovery credits for the recovery
needs of a species, fulfill the purposes of the ESA, and provide
consistency in the establishment, management, and use of recovery
credits. For more detailed guidance and information on various other
recovery programs, we include a list of helpful documents in section VI
of this guidance. These documents will help the reader have a more
complete understanding of recovery programs as a whole.
Recovery crediting is an optional process for Federal agencies to
use their authorities to further the conservation of listed species.
Recovery credits can provide an additional means of implementing
``conservation measures,'' commonly offered by Federal agencies to
offset effects to listed species resulting from Federal actions. As
noted in the Service's Consultation Handbook, ``When used in the
context of the Act, `conservation measures' represent actions pledged
in the project description that the action agency or applicant will
implement to further the recovery of the species under review.'' For
further discussion of conservation
[[Page 44768]]
measures, see Endangered Species Consultation Handbook, pp. 4-8. In a
recovery crediting system (RCS), the action agency would present
credits as part of its project description. A pledge represented by a
credit must be a legally binding commitment such as a contract with a
private landowner.
Some potential benefits of an RCS include (1) better and more cost-
effective contributions to recovery through agency activities; (2) more
exact analysis; and (3) increased predictability for all parties. The
Service and its cooperators should closely evaluate the use of recovery
credits as a conservation tool for each species or group of species;
recovery credits may not be appropriate in some situations. In other
cases, recovery credits may be a valuable tool in advancing the
recovery of a species.
This guidance is general in nature, as each process developed for
using recovery credits will differ based on a variety of circumstances.
An RCS should be tailored to the specific circumstances under which it
would be applied; ideally it should be based on the relevant recovery
plans and, when recovery plans are lacking or inadequate for the design
of an RCS, should rely on other Service-approved documents (see ``III.
B. Planning and Development Phase'' below for examples). RCS may
complement mitigation tools and conservation programs currently
available, such as conservation banking. This guidance also does not
attempt to closely define or assign roles to the agencies and other
participants in an RCS; we anticipate that these roles will vary to
some degree in response to the circumstances surrounding particular
systems.
B. Background
We have long recognized that effective recovery planning and
implementation for listed species require cooperative processes,
including recovery actions by Federal land managing agencies with
adjacent landowners, local communities, Tribes, States, and other
Federal agencies.
The concept of recovery credits was developed in Texas to allow the
Department of Defense (DoD) to receive credit for recovery measures
being implemented by Fort Hood Military Reservation. Fort Hood, which
is home to the largest known population of the endangered golden-
cheeked warbler within its breeding range, carries out recovery
measures with neighboring landowners in an effort to offset adverse
effects that may result from future on-base military readiness
activities. In exchange for implementing recovery actions, DoD
requested that these actions be considered for ``banking'' to offset
effects attributable to training activities.
Although the Fort Hood example is very specific and limited in
scope, the general concept can be applied more broadly. Federal
agencies may obtain credit for actions undertaken on non-Federal lands
to advance the recovery of listed species, and this credit may be
expended, or debited, to offset potential adverse effects of future
actions. In other words, Federal agencies may ``bank'' recovery credits
in advance in a particular RCS, and apply those credits at a later time
to the analysis of an agency action. This process can add an incentive
for Federal agencies to use their authorities to further the purposes
of the ESA.
C. What Is a Recovery Credit?
A recovery credit is a quantifiable unit of measure recognized by
the Service representing a contribution to the recovery of a species
listed under the ESA. For example, in its simplest form, one credit
could equal a specified number of acres of habitat, the acreage
necessary to support one nest of the target species, or a specified
number of acre-feet of water secured. Recovery credits should be based
on a commitment to implement recovery actions outlined in a particular
species' recovery plan or alternative Service-approved document. Each
recovery credit, therefore, may be considered to be part of recovery
implementation leading towards the downlisting or delisting goals of a
threatened or endangered species, taking into account the debits that
have occurred.
An RCS is a specific program established to implement recovery
actions on non-Federal lands for specific species while creating a
``bank'' of credits that a Federal agency may use to offset the effects
of its actions. That is, the Federal agency may develop and store
credits to be used at a later time to offset particular adverse effects
of its actions. The overall system must provide a net benefit to
recovery for covered species. ``Net benefit to recovery'' is defined as
follows: Enhancement of a species' current status by addressing the
threats identified at the time of listing or in a current status
review. Net benefit to recovery represents the cumulative benefits of
the recovery actions for a species identified in an RCS that contribute
to the goal of downlisting or delisting the species, as specified in a
current recovery plan or equivalent Service-approved document, after
consideration of the debits applied to any adverse effects of a Federal
agency action. A net benefit to recovery will generally be found when
an action directly or indirectly provides a material increase in a
species' population and/or a material enhancement, restoration, or
protection of that species' habitat.
Under this policy, only Federal agencies may apply recovery credits
to the effects of their proposed actions, but the system is similar in
principle to conservation banking and habitat conservation plans.
Recovery credits must be realized to create a ``bank'' of credits
before they can be used to compensate for adverse effects to listed
species. Unlike the situation with conservation banks, the RCS may be
used for either permanent or temporary effects. However, the positive
effects of the credits may be temporary (e.g., secured by a term
contract) only if the negative effects to be offset are also temporary
and, further, if the accounting function of the recovery credit system
ensures that benefits of the credits are achieved in a way so that
there is a net benefit to recovery. The recovery actions represented by
credits must take place within a geographic area that is biologically
appropriate to offset the adverse effects, such as a recovery unit.
II. Guidance Considerations
A. Authorities
The ESA provides the basis and framework for this guidance. The
ESA's stated purposes include providing ``a means whereby the
ecosystems upon which [listed] species depend may be conserved'' and
``a program for the conservation of such [listed] species.'' Under
section 3 of the ESA, conservation is defined as ``using all methods
and procedures which are necessary to bring any [listed] species to the
point at which the measures provided pursuant to [the ESA] are no
longer necessary.'' Within the context of this guidance, these
definitions help determine and evaluate appropriate conservation
measures and benefits. Further, recovery planning is addressed under
section 4(f) of the ESA, where provisions for the development of
recovery plans for the ``conservation and survival of [listed]
species'' are provided. A recovery plan is one of the most important
tools to ensure sound decisionmaking throughout the recovery process.
Section 7(a)(1) of the ESA requires that all Federal agencies ``in
consultation with and with the assistance of the [Service], utilize
their authorities in furtherance of the purposes of [the ESA] by
carrying out programs for the conservation of [listed species].'' The
ESA gives broad
[[Page 44769]]
discretion to Federal agencies to determine the appropriate methods for
implementation of section 7(a)(1). One possible method for agencies to
utilize their authorities for the conservation of the species is
through an RCS.
Establishing an RCS should result in a net benefit to the recovery
of a listed species. That is, the status of the target species will
improve because, overall, the crediting system must contribute to the
recovery of that species. Of course, each Federal agency will have to
balance its authorities, statutory obligations, and missions to
determine if this policy is appropriate or viable for the agency's
purposes. For example, a Federal agency will have to determine if it
has authority to acquire interests in non-Federal lands.
B. Goals and Objectives
The goal of an RCS is to enhance the ability of Federal agencies to
promote the recovery of listed species on non-Federal land and offset
adverse effects to listed species from proposed actions. Objectives are
(1) to produce a net benefit to recovery of the target species, (2) to
increase the flexibility of Federal agencies to accomplish their
missions while meeting their requirements under the ESA, and (3) to
promote effective Federal/non-Federal partnerships for species
recovery.
In order to meet the first objective, the standard for establishing
recovery credits should be implementing actions within an approved
recovery plan that has been identified as current by the Service office
with lead for the species. The Service should prioritize updating or
supplementing recovery plans that are not current for species for which
an RCS is being considered, so that any new actions being considered
are integrated with the recovery criteria and plan for the species. In
some instances, a recovery plan may not be available for a species
being considered for an RCS. If so, an alternative document such as a
Service-approved conservation plan, strategy, or framework that has
identified specific actions to address the threats to the species may
be used. Examples of documents that can contribute to establishing an
RCS include military Integrated Natural Resource Management Plans,
State Wildlife Action Plans, 5-year status reviews, and biological
opinions. However, those can be utilized in tandem with a recovery plan
and any specific actions within alternative documents must be
consistent with the goals, objectives, and recovery strategy identified
in the species' recovery plan to address threats and promote recovery
of the species. Providing credits for recovery tasks allows Federal
agencies to work together with other entities to more effectively use
measures in achieving net benefits that contribute to recovery, rather
than simply addressing on-site effects of particular projects. When it
is possible to foresee the utility of an RCS during the preparation of
a recovery plan, authors of a plan may incorporate elements of the
system explicitly in the plan.
C. Principles of Recovery Crediting
Simply put, the recovery credit system is: (1) The development and
accrual of credits, which would accomplish recovery tasks and have a
net benefit to recovery for the target species; and (2) a subsequent
Federal action, which uses (debits) some portion of the credits, as
part of the Federal action to offset adverse effects.
Federal agencies can employ an RCS to accomplish recovery tasks as
well as offset the adverse effects of their actions. Although Federal
agencies with appropriate authorities may also purchase credits in a
conservation bank or employ other mitigation or recovery measures, a
Federal agency may want to establish a system specific to its needs.
Recovery crediting works within the existing framework of the ESA and
its implementing regulations. This guidance is intended to assist in
the early stages of planning and development of a proposed RCS. While
no two crediting systems are likely to be identical, this guidance
addresses fundamental principles that would apply to all situations.
The general principles of establishing an RCS include--
The Recovery Crediting Process
Information gathering and analysis;
Planning and credit development phase; and
Consultation on the credit accrual process (ordinarily
combined with the consultation on the debiting process)
The Recovery Debiting Process
Debit development phase;
Programmatic debiting consultation; and
Project-Specific Application
Project-specific consultation under programmatic
consultation; and
Actual debits of the credits.
While these principles are based on our experiences from multiple
consultations, the Service believes that consultation can be achieved
in many cases through a two-step consultation process: (1) A
programmatic consultation to establish the recovery credit and debiting
process and (2) a project-specific consultation.
D. Coordination Process
The Service lacks the resources to implement many, if not most,
recovery actions. Collaboration with a wide variety of potential
stakeholders is essential for the implementation of recovery plans. An
appropriate RCS can assist the Service, other Federal agencies, and
their partners to achieve more effective implementation of recovery
plans.
The Service and the Federal action agency will coordinate to ensure
that the crediting system complies with all applicable laws. In
particular, action agencies and the Service may need to review laws
relating to privacy such as the Freedom of Information Act (FOIA) and
the Privacy Act. Further, depending on the system used to create the
recovery credits, action agencies and the Service may need to review
the Federal Advisory Committee Act (FACA). The National Environmental
Policy Act (NEPA) may be a relevant consideration as well. Service
employees should consult with their appropriate solicitor's office for
more specific advice with regard to these laws.
The Service will coordinate with appropriate Federal and State
partners, and we will encourage State and local entities, both
governmental and nongovernmental, to participate on the various
workgroups and committees formed under the RCS that will be central to
each process involved. For example, a local scientific committee may be
established to assist the Service in defining recovery credits. While
accrued recovery credits are used only by the Federal agency, the
accrual process (as described below) is the key to success and should
include participation by whatever non-Federal entities are appropriate.
III. Recovery Crediting Process
A. Information Gathering and Analysis Phase
This phase involves the identification of threats and the actions
needed to address those threats. Generally, the species' recovery plan,
or other Service-approved document, will provide a framework for
analysis. This analysis also establishes the means by which a credit in
a recovery crediting system will be measured and accounted for.
Information gathering and analysis involves the compiling of available
information sources, identifying data gaps, and evaluation of target
species. As stated above, a central element to defining an RCS is
coordination with
[[Page 44770]]
appropriate Federal and State partners, as well as interested local and
nongovernmental entities.
Within this phase, two important issues should be addressed: (1)
Evaluation of the recovery needs of the target species, and (2)
determination whether an RCS is feasible based on the recovery needs of
the listed species. Critical to both issues is the ability to evaluate
measurable recovery benefits to the target species. RCS will vary in
details, and some listed species may not be appropriate for inclusion
in a credit system based on their recovery needs. Examples may
include--
Species with poorly understood threats,
Species for which even minimal incidental take is likely
to result in a jeopardy determination,
Species with recovery plans that provide only interim
objectives due to a lack of information necessary for recovery such
that a net benefit to recovery cannot be determined, or
Species for which credits cannot easily be valued due to
the nature of threats (e.g., a local endemic threatened by impoundment
of a river).
B. Planning and Development Phase
This phase uses the results of the information gathering and
analysis to establish in detail what constitutes a credit. As in other
recovery programs, the planning and development phase is likely to be
the most important and time-consuming part of the process. Although
debiting of credits will not come into play until after the credits are
established (e.g., after restoration or management actions have
achieved their goals), the debiting must be considered in the credit
development phase in order to meet the standard of a net benefit to
recovery of the species. As part of the planning process, Federal
agencies may identify future needs, locations of future projects, types
of future projects, and associated project activities. Values may be
assigned to different tasks within a recovery plan or alternative
Service-approved planning document based on priority, and the use of
debits may be limited depending on the needs of the species' recovery.
In addition, the RCS must integrate monitoring and reporting of both
accrual and debiting of credits.
Any RCS should address the threats that caused the species to be
listed, advance the recovery goals of the species, and must be based on
sound scientific principles. That is, the system must demonstrate the
relationship between the conservation value of the recovery measure as
it applies to the credit.
As stated above, in instances where a recovery plan is not
specific, is not available, or is outdated, the Service may consider
other documents to establish recovery crediting. We will use
information that we determine represents the best available scientific
information on the needs of the species. The Service should prioritize
updating or supplementing recovery plans that are not current for
species for which an RCS is being considered, so that any new actions
being considered are integrated with the recovery criteria and plan for
the species. An alternative document such as a Service-approved
conservation plan, strategy, or framework that has identified specific
actions to address the threats to the species may be appropriate in
some instances. Examples of documents that can contribute to
establishing an RCS include military Integrated Natural Resource
Management Plans, State Wildlife Action Plans, 5-year status reviews,
and biological opinions. However, these can be utilized in tandem with
a recovery plan, and any specific actions within alternative documents
must be consistent with the goals, objectives, and recovery strategy
identified in the species' recovery plan to address threats and promote
recovery of the species.
Credits should be valued based on recovery tasks, or analogous
measures, available to a Federal agency. This phase will develop values
to be assigned to recovery tasks, ensuring that a net benefit to
recovery is realized for the target species. Credit values are based
upon achieving measurable objectives, and higher priority recovery
tasks would generally receive more credit than lower priority ones.
Ranking threats may be accomplished among or within tasks in a recovery
plan. For example, various Federal conservation programs use a project
selection process based on several considerations. Higher value (i.e.,
more credit) is typically placed on potential projects that--
Preserve long-term habitat.
Address high-priority recovery needs.
Are larger in size (i.e., habitat size or quality).
Are adjacent or in proximity to public lands or other
permanently protected areas.
Target a specific geographic focus area (e.g., recovery
unit).
Benefit multiple species.
Establish corridors to accommodate migration or connect
fragmented habitat.
In this phase, the temporal nature of potential effects on or needs
of the species would be analyzed. Many species require active
management (e.g., invasive species control, prescribed fire, etc.) or
public outreach to contribute to recovery or research to support
recovery. Thus, some credits may be temporary in nature, provided the
action meets the recovery needs of the species. Temporary credits could
be used to offset temporary adverse effects in appropriate situations
that still allow a net benefit to recovery. For example, many
transportation and linear utility projects require temporary workspace
for construction, which is later returned to pre-construction
conditions. An agency could accrue credits for the restoration and
temporary protection of degraded habitat to mitigate for habitat that
has temporary adverse effect, with the duration of credit based on
benefits achieved at the restored site and eventual restoration of the
affected site.
In its simplest form, a single Federal agency would identify a
recovery action(s) for establishment of an RCS. For example, a recovery
plan may call for the permanent preservation of a viable population in
a particular recovery unit. A Federal agency may identify that need,
and develop a process for accruing credits through conservation
easements that would meet that objective of the recovery plan
(preserving the viable population). Credits reflecting habitat
protection or restoration would be considered to be banked when
conditions on the ground indicate completion of the recovery task. More
complex crediting systems may involve multiple Federal agencies and may
assign credits to several or all tasks within a recovery plan. In
either case, a single Federal agency would be the holder of credits.
Whenever possible, other partners should be included in the development
process (e.g., State agencies, nongovernmental organizations, etc.),
and they may play a major role in implementing the credit accrual
process.
Finally, in the development phase, it is important to address the
transferability of accrued credits. Circumstances may arise in which a
Federal agency may opt to sell or transfer banked credits to another
agency. These situations should be considered early and be included in
the crediting process, but may be defined in greater detail within the
debiting process.
C. Consultation on Credit Accrual Phase
Upon completing the development of a proposed crediting process the
Federal action agency will consult on the process under section 7 of
the ESA. Ordinarily, a programmatic consultation will address both the
crediting and
[[Page 44771]]
debiting processes; in rare cases separate consultations may address
the two processes. The use of a proposed crediting system is a
discretionary Federal action that ``may affect'' a listed species, and
therefore requires section 7 consultation. This consultation determines
whether a proposed agency action is likely to jeopardize the continued
existence of a listed species or destroy or adversely modify critical
habitat. For the process developed to accrue credits, the net effect on
the target species should be beneficial. In some instances, temporary
adverse effects may be necessary to achieve the maximum recovery
benefit to the target species. For example, a survey may involve some
level of taking of a listed species. In these cases, it may be
necessary to consult formally on the credit accrual process, if it is
anticipated that incidental take may occur as a result of credit
acquisition. An agency requesting initiation of consultation on an RCS
must include in its initiation package an adequate explanation of the
net benefit to recovery that the RCS will provide to the relevant
species and the specific means by which it will be provided.
As discussed above, although a Federal agency needs to consider how
credits will be debited while determining how they will be accrued,
once it establishes an RCS through the section 7 consultation process,
a Federal agency may begin accruing credits through the procedures
outlined in the plan.
IV. Recovery Debiting Process
A. Debit Development Phase
This phase establishes the standards according to which credits
will be used. This phase may be conducted separately or concurrently
with the credit accrual planning and development. An advantage of
considering crediting and debiting at the same time is that a better
match may be achieved between the credits accrued and the debiting
needs. Establishing the guidelines for debit use and other factors,
limitations, accounting, and monitoring and reporting may be created as
a stand-alone document, but will eventually become the ``Project
Description'' within a biological assessment or evaluation, and
subsequent biological opinion. In addition, the debit process could
consider the possibility of Federal agencies other than the Federal
agency that established the RCS being able to use credits.
Consideration of debits includes ensuring that agencies maintain a
net benefit to recovery gained by credit accrual. In general, credits
that accomplish tasks in a species' recovery plan would normally meet a
net benefit to recovery standard. However, because credits would be
used for mitigation, it is important to ensure the debit process does
not limit, counter, or preclude necessary recovery objectives and is
developed in reliance on a recovery plan or analogous document.
Examples of using a debiting process to ensure a benefit to recovery
include--
Using biologically appropriate mitigation ratios in
habitat-based crediting (e.g., more than one credit for each debit
necessary to fully offset adverse effects).
Maintaining a credit balance that ensures an incremental
increase in the species' recovery status.
Restricting use of debits to areas not deemed essential in
recovery plans or a Service approved conservation plan, strategy, or
framework that has identified specific actions to address the threats
to the species.
Limiting the types of activities available for debiting.
Similar to planning the crediting phase, it is essential that an
activity or action's potential effects to the target species be
sufficiently understood in order for it to be included in the debiting
process. In some instances, the effects of even well-understood actions
may possess some level of uncertainty. The debiting process should be
designed to accommodate uncertainty that is evaluated based on a
clearly stated and explained set of assumptions.
B. Programmatic Debiting Consultation
The debiting process as part of an RCS is subject to consultation
under section 7(a)(2) of the ESA. Programmatic consultation addresses
programs or groups of similar actions implemented by a Federal agency.
A non-jeopardy biological opinion also determines the amount or extent
of anticipated incidental take, if any.
In implementing an RCS, the programmatic approach will be necessary
due to the nature of credit and debit concepts, and to ensure a net
benefit to recovery of the species. The Federal action subject to
consultation is the establishment of the debiting process and actions
included therein. Under programmatic consultation, much of the effects
analysis is completed upfront, rather than repeatedly for each
individual action. By completing this analysis beforehand in a
programmatic biological opinion, the anticipated effects of the action
agency's future projects can be added into the environmental baseline
prior to their actual completion. When both accrual and debiting
processes are considered together in consultation, a more accurate
analysis of the benefits of the RCS is possible than would be the case
were they to be addressed separately. The appended and tiered methods
of programmatic consultation involve a two-stage consultation process
that would be appropriate here. The first stage is programmatic and
analyzes the potential landscape-level effects that may result from the
debiting process. The second stage addresses project-specific effects
of each individual project under the action agency's program and
previously included in the programmatic biological opinion. The prior
consultation at a programmatic level is intended to expedite this
second stage; to the extent that it is possible to anticipate project-
specific effects at a programmatic level, they need not be revisited in
any detail later on.
A Federal agency may include recovery measures in a proposed action
as mandatory, non-discretionary actions or activities that will
minimize adverse effects to listed species. An RCS would formalize that
process and mitigate adverse effects to listed species by taking
measures (accruing recovery credits) that may be included as
conservation measures for a specific project in a specific geographic
location. The Service would consider the use of recovery credits when
it analyzes potential jeopardy to the species and destruction or
adverse modification of any critical habitat in a biological opinion.
The ESA requires the Service to specify any necessary or appropriate
minimization of the effects of incidental take exempted in a biological
opinion. Because recovery credits would be acquired in advance of a
specific Federal action and may not be associated with incidental take
resulting from the proposed action itself, they would normally offset
the effects of incidental take with respect to the RCS standard of net
benefit to recovery, but would not necessarily minimize the effects on
individuals affected by the proposed action as required by section
7(b)(4)(C) of the ESA. Therefore, the biological opinion may still
require reasonable and prudent measures and terms and conditions that
address the incidental take resulting at the project-specific level.
These must fit within the context of ``minor changes'' as described at
50 CFR 402.14(i)(2).
The end product of programmatic consultation will be a
comprehensive biological opinion issued to the Federal action agency
that describes in detail or incorporates by reference the crediting and
debiting processes and all actions and activities involved. It will
evaluate
[[Page 44772]]
all potential effects of the actions (debits) as well as the credits
accrued and used to offset the effects and provide a jeopardy analysis
for listed species and destruction/adverse modification analysis for
designated critical habitat if applicable. The consultation would
consider all listed species that may be affected, not just the target
species, and any designated critical habitat occurring in the action
area for the jeopardy/adverse modification analysis.
The programmatic biological opinion may not be able to describe
take at the programmatic level. In this case, the specific take
authorization and associated reasonable and prudent measures and terms
and conditions would be described in site-specific biological opinions.
If the overarching biological opinion can describe, with appropriate
documentation from the action agency, the project-specific actions,
then a list of reasonable and prudent measures and terms and conditions
can be included, and no additional opinion is needed for those actions.
The Service must develop reasonable and prudent measures and terms and
conditions in close coordination with the action agency. This
coordination may identify specific measures the action agency will
incorporate at the project-specific level.
C. Project-Specific Consultation
As individual projects are proposed, the action agency provides
project-specific information as described in the programmatic
biological opinion. This information should include, but not be limited
to, the specific areas to be affected, the species and critical habitat
that may be affected, a description of anticipated effects (in
reference to those already analyzed in the programmatic biological
opinion), a description of any additional effects not considered in the
programmatic consultation, appropriate reasonable and prudent measures
and terms and conditions, the resulting debits as ranked in the
programmatic opinion, and the credit balance resulting from the action.
The project-level consultation should be an expedited process because
most of the needed analysis will have occurred at the programmatic
level. This is an added incentive for Federal agencies to use
programmatic consultation and recovery crediting.
V. Monitoring
A monitoring program is essential to the success and the
credibility of an RCS, both for the crediting and debiting aspects of
the process. The scope of the monitoring plan should be commensurate
with the crediting system's recovery framework, based on the goals and
objectives of the species' recovery plan; the monitoring should measure
the objectives as implemented by the crediting system. Ultimately, the
Federal action agency is responsible for accounting for credits and
compliance with the debiting process as determined through the
programmatic biological opinion. However, the Service will provide
technical assistance in the monitoring plan and contribute to the
monitoring process through the development of terms and conditions
within biological opinions, as well as reviewing and providing
concurrence, if warranted, under project-specific consultations.
Additionally, the Service will be responsible for periodic review of
the species' environmental status, either through an established
protocol or more conventional methods (e.g., 5-year review,
programmatic biological opinions, etc.).
In general, monitoring may comprise two elements: effectiveness
monitoring and compliance monitoring. Effectiveness monitoring will
evaluate the credit valuation and accrual process in achieving the
goals and objectives of recovery actions. This monitoring focuses on
the crediting process, involves principles of adaptive management, and
includes all implementation partners. The responsibility of
effectiveness monitoring belongs to the Federal agency that accrues and
holds credits, although other entities would be involved. When the
credit accrual process results in a biological opinion from the
Service, effectiveness monitoring provisions are part of the project
description. Any coverage under the incidental take statement,
therefore, is dependent on the action agency carrying out the action as
described in the project description.
Compliance monitoring audits and accounts for credits and debits
and ensures proper implementation of the agency action. Any monitoring
and reporting must be incorporated into the project description as an
integral part of implementing the RCS.
Although an RCS is a focused tool for Federal agencies to make a
positive contribution towards the recovery of listed species while
creating flexibility for offsetting effects of their other actions, the
Service encourages the development and use of other types of crediting
systems to meet other needs and circumstances. In addition, this
guidance by no means restricts Federal agencies from developing or
using other crediting systems such as conservation banks. An RCS is one
method by which a Federal agency may contribute towards its section
7(a)(1) responsibilities. The Service encourages Federal agencies to
develop other programs that would also contribute to the recovery of
listed species on Federal and non-Federal lands.
VI. References
The following is a list of documents that would be useful for
establishing an RCS. Some are in draft form, but are readily available
to Service personnel through Regional Offices or the Washington Office.
U.S. Fish and Wildlife Service. 1990. Policies and guidelines for
planning and coordinating recovery of endangered and threatened
species. Washington, DC. 14pp. + appendices.
U.S. Fish and Wildlife Service. 1999. Final Safe Harbor Policy. 64
FR 32717, June 17, 1999.
U.S. Fish and Wildlife Service. 2003. Guidance for the
Establishment, Use, and Operation of Conservation Banks.
U.S. Fish and Wildlife Service and National Marine Fisheries
Service. 1998. Endangered Species Act Consultation Handbook:
Procedures for Conducting Section 7 Consultations and Conferences.
Washington, DC.
U.S. Fish and Wildlife Service and National Marine Fisheries
Service. 2004 (updated 2006). Draft Endangered and Threatened
Species Recovery Planning Guidance.
Williams, B.K., R.C. Szaro, and C.D. Shapiro. 2007. Adaptive
Management: The U.S. Department of the Interior Technical Guide.
Adaptive Management Working Group, U.S. Department of the Interior,
Washington, DC.
Authority The authority for this action is the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
Dated: July 25, 2008.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. E8-17579 Filed 7-30-08; 8:45 am]
BILLING CODE 4310-55-P