CCAA Frequently Asked Questions
What is a candidate Species?
While the Service “officially” defines a “Candidate Species” as a plant or animal species for which the Service has on file sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened, when we refer to our Candidate Conservation Program, we speak to a much broader definition. In addition to “candidate” species, we also include State-listed species of concern, as well as other Federal agency species of concern.
Why is it important to make this distinction? Because when we refer to our Candidate Conservation Program, we include species that are at risk of becoming listed under the Endangered Species Act – and these species are not solely Candidate species. For example, we have Candidate Conservation Agreements in Wyoming that cover a variety of species of concern, from black-tailed prairie dogs to burrowing owls – neither of which is a Candidate species.
What are Candidate Conservation Agreements (CCAs)?
CCAs are voluntary conservation agreements between the Service and one or more public or private parties. The Service works with its partners to identify threats to candidate species (or species at risk), plan the measures needed to address the threats and conserve these species, identify willing landowners, develop agreements, and design and implement conservation measures and monitor their effectiveness.
What is a Candidate Conservation Agreement with Assurances (CCAA)?
Conservation of animal and plant resources on non-Federal lands is important because many species rely heavily – or even entirely – on such lands. However, due to concern about potential land use restrictions that could occur if a species becomes listed under the ESA, some property owners have been reluctant to engage in conservation activities that encourage use of their land or water by such species. A Candidate Conservation Agreement with Assurances addresses this concern by providing incentives for non-Federal property owners to engage in voluntary conservation activities that can help make listing a species unnecessary. More specifically, a CCAA provides participating property owners with a permit containing assurances that if they engage in certain conservation actions for species included in the agreement, they will not be required to implement additional conservation measures beyond those in the CCAA. Also, additional land, water, or resource use limitations will not be imposed on them should the species become listed in the future, unless they consent to such changes.
What is the process of developing a CCAA?
CCAAs are not simply an agreement – they provide non-federal landowners a permit that exempts them from Section 9 of the Endangered Species Act (prohibited actions). This is a powerful assurance, but it does come with a price. The process to develop, implement and monitor a CCAA is complex, but achievable.
First, a landowner must contact the Service with a tentative plan and reason for developing a CCAA. Developing CCAAs are considered a discretionary action on the part of the Service – in other words, they may be pre-empted by higher priority workloads. We need a firm commitment from the landowner that they intend to stay with the process to develop the agreement if we are to devote staff time and effort.
Next, with the species of concern identified, we must conduct a 5-factor analysis (threats analysis). This forms the basis of the CCAA. With the threats analysis in hand, we can discuss what conservation actions (or measures) can address the threats.
Once the conservation actions have been identified, we must determine if these are enough to meet the CCAA “standard”, which is “actions to be taken would remove the need to list the covered species when combined with actions carried out on other necessary properties. Other necessary properties are those on which conservation measures would have to be implemented in order to preclude or remove any need to list the covered species.”
In addition to the CCAA agreement, the Service must prepare additional documentation including appropriate level National Environmental Policy Act (NEPA), Conference Opinion, and Findings documents. The landowner will not need to participate in these documentation exercises, but should be aware of the background work needed to process their application.
Once a draft agreement is in place, an application should be filed with the Service to apply for the Section 10a(1)A permit. Along with the application and application fee (which costs $50), the Service will also prepare a Federal Register notice outlining the property’s legal description and all the activities that will be permitted on the property. A 30-day (minimal) time period for public comments will be posted, and any comments received will be addressed in the final version of the CCAA.
Once the final version of the CCAA has addressed any potential public comments, the 10a(1)A permit will be issued, and the process to develop the CCAA is complete. Next, will be implementing and monitoring the CCAA.
How Does the CCAA Process Work?
Property owners agree to undertake activities on their non-Federal lands to remove threats and otherwise improve the status of candidate and at-risk species. A variety of actions may qualify, such as:
- protecting and enhancing existing populations and habitats;
- restoring degraded habitat;
- creating new habitat;
- augmenting existing populations;
- restoring historic populations; and
- not undertaking a specific, potentially impacting/damaging activity.
In return for the participant’s voluntary conservation action(s), the Service provides an Enhancement of Survival Permit under section 10(a)(1)(A) of the ESA. The permit, which goes into effect if the covered species becomes listed, provides the participant with a prescribed amount of “take” of the species, and/or habitat modification when such take is incidental to activities specified in the CCAA. Such take might occur as the landowner implements agreed upon conservation actions or other ongoing management activities on the property enrolled in the CCAA. The Service recognizes that a single CCAA by itself may not be sufficient to reduce or remove all threats so that listing is unnecessary. In developing a CCAA, a non-Federal property owner needs only to address those threats, or the proportion of those threats, that he or she can control on the property enrolled. The standard that must be met for the Service to enter into a CCAA and issue the related permit is that the duration of the CCAA must be sufficient for the Service to determine that the benefits of the conservation measures in the agreement, when combined with those benefits that would be achieved if it is assumed that the measures would also be implemented on other necessary properties, would preclude or remove any need to list the covered species.
What is the rationale behind the way the Endangered Species Act is written which precludes Federal agencies from entering into a Candidate Conservation Agreement with Assurances (CCAA) on Federal land situations, i.e. what is the rationale for the interpretation of section 7 of the Endangered Species Act (ESA) as precluding this?
Federal agencies are not precluded from entering into CCAAs. However, Federal agencies have special responsibilities to conserve listed species under the ESA that may require efforts in addition to those specified in a CCAA. A non-Federal property owner does not have these obligations, even under a CCAA. Consequently, CCAA assurances cannot be provided to a Federal agency. This is reflected in the CCAA regulations, which state: “These assurances cannot be provided to Federal agencies” (50 CFR 17.22(d)(5)).
CCAA assurances are conveyed through an enhancement of survival permit issued by the U.S. Fish and Wildlife Service (FWS) under the authority of section 10(a)(1) of the ESA. Briefly stated, the non-Federal permittee receives assurances that in case of changed or unforeseen circumstances, the permittee will not be required to implement additional conservation measures beyond those in the CCAA, nor will additional land, water, or resource use restrictions be imposed on the permittee should the species become listed in the future, unless they consent to such changes.
The rationale for not providing such assurances to Federal agencies has its roots in the special role Congress assigned to Federal agencies under the ESA. Specifically, section 2(c)(1) states: “It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.” The responsibilities of Federal agencies are specifically described in section 7(a) of the ESA, concerning Federal agency actions and consultations with the FWS and/or National Marine Fisheries Service:
- Section 7(a)(1) requires all Federal agencies to utilize their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of listed species.
- Section 7(a)(2) requires Federal agencies to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat.
Section 9 and related regulations prohibit the “take” of listed species of fish or wildlife, and this prohibition applies to Federal as well as non-Federal entities. Congress established section 7(a)(2) as the mechanism by which a Federal agency receives authorization for “take” through an “incidental take statement” issued as part of the consultation process. Consistent with the affirmative responsibility of a Federal agency to conserve listed species, the consultation regulations require a Federal agency to re-initiate consultation under various circumstances, including when new information reveals that the effects of an action may impact a covered species to an extent not previously considered (50 CFR 402.16). Thus, if conditions change and a Federal agency needs to re-initiate consultation, if the extent of incidental take exceeds what was previously authorized the FWS may revise the reasonable and prudent measures necessary or appropriate to include in an incidental take statement in order to minimize the effects of any take that occurs. Providing Federal agencies with the assurances available to non‑Federal property owners under section 10 would ignore the requirement for Federal agencies to reinitiate consultation when necessary, and would not be consistent with the role of the agencies in achieving the purposes of the ESA.
Congress established separate provisions, in section 10 of the ESA, to provide non‑Federal entities with a process for obtaining an exception to the prohibitions on take. The main approach has been for non-Federal entities to receive an incidental take permit issued in association with a Habitat Conservation Plan (HCP) under section 10(a)(1)(B). Consistent with Congressional intent, the “No Surprises” policy was adopted by the Services in 1994 to provide assurances to an HCP permittee in case of changed or unforeseen circumstances. The “No Surprises” policy and the subsequent 1997 proposed rule and the 1998 final rule to codify it noted that in cases where the status of a species addressed under an HCP unexpectedly worsens, the primary obligation for implementing additional conservation measures would be borne by the Federal government, other government agencies, private conservation organizations, or other private landowners who have not yet developed an HCP. The “No Surprises” rule adopted in 1998 included a statement that “These assurances cannot be provided to Federal agencies” and the Federal Register notice specifically noted that the proposed rule had been clarified in the final rule “so that it is apparent that No Surprises assurances do not apply to Federal agencies who have a continuing obligation to contribute to the to the conservation of threatened and endangered species under section 7(a)(1) of the ESA” (63 FR 8867; February 23, 1998). The CCAA policy and regulations adopted in 1999 under section 10(a)(1)(A) included assurances modeled on those for HCPs, including the provision that the assurances could not be provided to Federal agencies. In revising the regulations for CCAAs and Safe Harbor Agreements (SHAs) in 2004, the Department of the Interior reaffirmed the rationale for why such assurances are not applicable to Federal lands:
"We did not intend to broaden the availability of the assurances provided under these permits to make them include activities by non-Federal property owners that are conducted on Federal lands. Such activities are subject to regulation by the responsible Federal agency. Federal agencies are not eligible for the assurances provided under SHAs or CCAAs as they have an affirmative responsibility for species conservation under section 7(a)(1) of the Act, and authorization for incidental take involving Federal land is covered under the provisions of section 7(a)(2) of the Act and implementing regulations. Only non-Federal property owners conducting activities on non-Federal land may receive the assurances under an enhancement of survival permit for an SHA or CCAAs." (69 FR 24085; May 3, 2004).
How long does it take to complete a CCAA?
Depending on the complexity of the agreement (e.g., will it cover only 1 species or many, will it involve just 1 landowner or many) and the available Service staff, it can be completed in as short as 6 months. However, if it is a large complex, multi-species agreement, it can take years.
Why did the 4W CCAA take so long to complete?
The 4W CCAA covers multiple species, which greatly increases its complexity, and was initiated following the release of the CCAA policy. This put it in a class by itself. However, the main reason it took 8 years to complete was lack of staffing at the Wyoming Ecological Services Office. At the time the 4W was begun, our staffing levels did not permit us to work as diligently as we wanted – and CCAAs are discretionary agreements – they are not our primary work. We have mandated workloads, dictated by legislation, that take precedence over discretionary actions. Our staffing levels now are considerably better than when we began work on the 4W; we do not anticipate taking long on future agreements.
Can I write my own CCAA?
You can certainly draft your own CCAA; we can provide generic templates that contain standard “boilerplate” language to facilitate completing the document. However, the Service must still complete all the supporting documentation, which can consume a considerable amount of time.