[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Proposed Rules]
[Pages 15352-15354]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6221]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13, 17, and 402
[Docket No. FWS-R9-ES-2011-0099: FXES11150900000A2123]
RIN 1018-AY29
Endangered and Threatened Wildlife and Plants; Expanding
Incentives for Voluntary Conservation Actions Under the Endangered
Species Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
considering proposals to amend the regulations that implement parts of
the Endangered Species Act. By this notice, we are inviting public
comment to help us identify potential changes to our regulations that
would create incentives for landowners and others to take voluntary
conservation actions to benefit species that may be likely to become
threatened or endangered species. In particular, we seek comment on
whether and how the Service can assure those who take such voluntary
actions that the benefits of such voluntary conservation actions will
be recognized as offsetting the adverse effects of activities carried
out after listing by that landowner or others. This practice sometimes
referred to as ``advance mitigation'' or ``pre-listing mitigation,'' is
intended to encourage early conservation efforts that could reduce or
eliminate the need to list species as endangered or threatened.
DATES: We will consider comments received or postmarked on or before
May 14, 2012.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R9-ES-
2011-0099, which is the docket number for this notice. You may submit a
comment by clicking on ``Submit a Comment.''
By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R9-ES-2011-0099; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We will post all information received on http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments below for
more details).
FOR FURTHER INFORMATION CONTACT: Jim Serfis, Chief, Office of
Communications and Candidate Conservation, U.S. Fish and Wildlife
Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203
(telephone 703-358-2171). If you use a telecommunications device for
the deaf (TDD), call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We are considering whether and how we could revise our regulations
to create incentives for landowners and others to take voluntary
conservation actions to benefit species that may be likely to become
threatened or endangered species, including revisions that could
recognize the benefits of such conservation actions as offsetting the
adverse effects of actions carried out after listing by that landowner
or others. We request comments, information, and suggestions from the
public, other concerned governmental agencies, the
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scientific community, industry, private landowners, or any other
interested parties to help us formulate any proposed regulation.
You may submit your comments and materials concerning this notice
by one of the methods listed in ADDRESSES. We will not accept comments
sent by email or fax or to an address not listed in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information--will be
posted on the Web site. If you submit a hard copy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this notice, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service
(see FOR FURTHER INFORMATION CONTACT).
Background
On January 18, 2011, President Obama issued Executive Order 13563,
which called for improvements in the nation's regulatory system to
promote predictability and reduce uncertainty and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
Pursuant to the Executive Order, the Department of the Interior
published notices on February 25, 2011, and July 11, 2011, asking the
public for suggestions as it prepared a plan for retrospective
regulatory review. Representatives from State government, non-
governmental groups and industries ranging from residential
construction to wind energy, and to electric utilities recommended that
the Department of the Interior update ESA regulations. Subsequently,
the Department of the Interior published its final Plan for
Retrospective Regulatory Review. That Plan identified a number of areas
where changes in the ESA regulations could improve conservation
effectiveness, reduce administrative burdens, create clarity and
consistency for affected interests, and encourage partnerships,
innovation, and cooperation. To achieve these goals, the Plan
identified a need to clarify, expedite, and improve procedures for the
development and approval of conservation agreements with landowners.
Currently, landowner agreements that provide regulatory assurances
under the ESA take three principal forms: Habitat Conservation Plans
(HCPs), Safe Harbor Agreements (SHAs), and Candidate Conservation
Agreements with Assurances (CCAAs). Habitat Conservation Plans, which
are required in order to secure a permit to take listed wildlife
species incidental to otherwise lawful activities, set forth measures
to be taken to mitigate the impacts of such authorized taking. Although
HCPs must always cover one or more listed wildlife species, they may
also cover unlisted species. Safe Harbor Agreements are voluntary
agreements under which a property owner agrees to carry out
conservation measures to benefit listed species without incurring any
new or additional regulatory liability as a result of their voluntary
action. Candidate Conservation Agreements with Assurances are voluntary
agreements under which a property owner agrees to implement
conservation measures for candidate or other unlisted species. In
exchange, the Service issues an enhancement of survival permit that
becomes active when the species covered by the CCAA is listed and
allows a prescribed level of incidental take by the landowner for the
duration of the agreement. While CCAAs enable a landowner to secure
assurances as to what their post-listing responsibilities will be in
advance of listing, these agreements do not explicitly address whether
and how pre-listing conservation measures might serve as mitigation for
post-listing activities that could negatively affect species, such as
land clearing, construction activities, or water diversion.
Related to these efforts, at present, Service policy pertaining to
conservation banking allows landowners or others to earn credits that
can be used to offset the negative impacts of proposed actions on
listed species. Under that policy, a credit represents a standardized
way of quantifying the impact of beneficial actions on the well being
of a particular listed species. Credits can be used to offset the
negative effects of detrimental actions, with the magnitude of those
negative effects quantified in the same manner. We seek any ideas to
improve these forms of landowner agreements.
It is possible that voluntary conservation actions for unlisted
species might lead to a determination that a particular species does
not need to be listed. If the need to list a species under the ESA can
be avoided, everyone benefits. The species benefit from early action to
address threats to their survival. Landowners and other regulated
interests avoid the imposition of potentially costly restrictions on
their activities. The Service avoids the need to dedicate scarce
conservation dollars to additional species. The States maintain their
primary management authority over non-listed species, ensuring that
local authorities respond to local problems with input from their
residents.
Although everyone benefits from avoiding the need to list a
species, there are often inadequate incentives for many people to
undertake conservation action for species prior to listing. Voluntary
conservation actions undertaken by one or a few persons are unlikely to
be sufficient to affect the need to list the species. Thus, those who
do undertake such actions in the hope that doing so will avert the need
to list the species are often disappointed or frustrated by the fact
that listing nevertheless occurs. Moreover, such voluntary actions
prior to listing may actually result in those persons being subject to
greater restrictions after listing than they would have been had they
done nothing at all (because, for example, their voluntary actions make
the species more numerous or more widespread on their property than it
otherwise would have been).
Avoiding the potential for voluntary conservation actions to result
in such unintended restrictions is a key purpose of a CCAA. Through a
CCAA, the Service provides the assurance that if the conditions of the
agreement are met, the landowner will not be asked to do more, commit
more resources, or be subject to further land use restrictions than
agreed upon if the species is listed. However, the development of such
Agreements has often been time-consuming and difficult. Accordingly,
the Service seeks suggestions to reduce the time and difficulty
associated with CCAAs so as to further the goals of greater efficiency
and flexibility in ESA regulatory programs.
We also give advance notice of our intent to propose a rule to
encourage landowners and other potentially regulated interests to fund
or carry out voluntary conservation actions beneficial to candidate and
other at-risk species by providing a new type of assurance that, in the
event the species is listed, the benefits of appropriate voluntary
conservation actions will be recognized as offsetting the adverse
effects of activities carried out by that landowner or others after
listing.
Once a species is listed as endangered or threatened, actions that
adversely affect it may need permits under section 10 of the ESA or
approval under the interagency consultation provisions of
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section 7 of the ESA. For actions reviewed under the interagency
consultation provisions of section 7, measures that offset the adverse
effects of those actions may be incorporated into and made a part of
the proposed action as a way of reducing its net effects and meeting
the approval standards of section 7.
Although existing regulations at 50 CFR 402.14(g)(8) require the
Service to consider certain beneficial actions taken ``prior to the
initiation of consultation,'' there is no clear mechanism for
acknowledging the benefits to a species of actions voluntarily taken by
a landowner or other person prior to its listing, or for recognizing
those benefits as mitigation or other requirements needed to secure
approval for an action carried out after listing.
An exception to the foregoing is any HCP that covers both listed
and unlisted species, as many large-scale HCPs do. These plans, and the
permits issued in association with them, acknowledge or verify the
conservation commitments contained in the plans as fulfilling the
requirements of the ESA with respect to all covered species even when
required conservation actions are carried out before some covered
species are actually listed, and the development activities for which
they serve as mitigation may be carried out after the species is
listed. Implicitly, at least, these plans are accepted as mitigation
for actions undertaken after some covered species are listed. Thus,
there is precedent for the conceptual idea examined here, but no clear
mechanism for accomplishing mitigation prior to listing outside the
context of multispecies HCPs.
We request suggestions and input from the public on how best to
establish clear mechanisms to encourage landowners and other
potentially regulated interests to fund or carry out voluntary
conservation actions beneficial to candidate and other at-risk species
by providing assurances that, in the event the species is listed, the
benefits of appropriate voluntary conservation actions will be
recognized as offsetting the adverse effects of activities carried out
after listing by that landowner or others. In addition to the requests
above, we specifically request input from the public on the following
questions:
(1) How can the Service allow for the recognition of
conservation credits for voluntary action taken in advance of
listing in a manner that is efficient, readily understood, and
faster? How can this be accomplished in an expeditious manner?
(2) Should credits recognized for voluntary conservation actions
taken prior to listing be available for use solely by the person who
created them or should they be transferable to third parties?
(3) If voluntary conservation actions undertaken prior to
listing generate conservation credits that can be used to offset
impacts of post-listing activities, should they be based solely on
the beneficial actions of the person undertaking them, or should
they be based on the net impacts of both beneficial and detrimental
actions?
(5) What role should the States play in recognizing and
overseeing the development of credits from voluntary conservation
actions taken for species not yet listed?
(6) How can or should the Service specify in advance of listing
the manner in which it will quantify the value of voluntarily
undertaken conservation actions?
(7) How the Service's conservation banking policy could be
revised to allow for the use of conservation credits accrued from
voluntary actions taken prior to listing?
(8) What changes, if any, are needed to the following
regulations, policies and guidance (The handbooks and policy are
available at http://www.fws.gov/endangered/esa-library/index.html.)
to clarify mechanisms by which the Service can give ``credit'' for
beneficial actions for unlisted species:
a. 50 CFR part 13
b. 50 CFR part 17
c. 50 CFR part 402
d. The Service's section 7 Handbook
e. The Service's HCP Handbook
f. The Service's Conservation Banking Policy
(9) How could the Service use pilot projects to demonstrate that
the ESA can provide landowners with credits and regulatory
assurances for actions intended to benefit candidate species? Are
there existing situations where such pilot projects could facilitate
conservation for candidate species?
(10) How can a landowner use such voluntary ``prelisting
mitigation'' activities to satisfy requirements arising from any
future section 7 consultation (such as ``conservation measures,''
``reasonable and prudent measure'' or ``reasonable and prudent
alternatives'')?
In considering these and other potential changes to the ESA's
implementing regulations, we intend to be guided by the following
objectives:
To improve the effectiveness of the ESA at conserving
endangered, threatened, and candidate species;
To eliminate unnecessary process requirements and to make
as efficient as possible the remaining process requirements;
To improve the clarity of, and eliminate the
inconsistencies among, our regulations;
To engage the States, conservation organizations, and
private landowners more effectively as conservation partners;
To encourage greater experimentation and creativity in the
implementation of the Act; and
To reduce the frequency and intensity of conflicts as much
as possible.
Accordingly, we invite recommendations for changes to our
regulations or policy that would further these objectives.
Authority
This notice is published under the authority of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 6, 2012.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2012-6221 Filed 3-14-12; 8:45 am]
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