[Federal Register: June 17, 1999 (Volume 64, Number 116)]
[Notices]
[Page 32717-32726]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn99-156]
[[Page 32717]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Announcement of Final Safe Harbor Policy
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Announcement of final policy.
-----------------------------------------------------------------------
SUMMARY: The Fish and Wildlife Service (FWS) and the National Marine
Fisheries Service (NMFS), (jointly referred to as the ``Services'')
announce a final Safe Harbor policy under the Endangered Species Act of
1973, as amended (Act). This policy provides incentives for private and
other non-Federal property owners to restore, enhance, or maintain
habitats for listed species. Because many endangered and threatened
species occur exclusively, or to a large extent, on non-Federally owned
property, the involvement of non-Federal property owners in the
conservation and recovery of listed species is critical to the eventual
success of these efforts. Under the policy, the Services will provide
participating property owners with technical assistance to develop Safe
Harbor Agreements (Agreements) that manage habitat for listed species,
and provide assurances that additional land, water, and/or natural
resource use restrictions will not be imposed as a result of their
voluntary conservation actions to benefit covered species. When the
property owner meets all the terms of the Agreement, the Services will
authorize incidental taking of the covered species at a level that
enables the property owner ultimately to return the enrolled property
back to agreed upon baseline conditions. The Services will closely
coordinate with the appropriate State agencies and any affected Native
American Tribal governments before entering into Agreements. The
Services considered and evaluated all the comments received on the
draft policy in developing this final policy. Additionally, the FWS is
publishing elsewhere in this issue of the Federal Register a final rule
that contains the necessary regulatory changes to implement this
policy.
DATES: This policy is effective July 19, 1999.
ADDRESSES: To obtain copies of the final Safe Harbor policy contact the
Chief, Division of Endangered Species, Fish and Wildlife Service, 452
ARLSQ, Washington, D.C. 20240 (Telephone 703/358-2171, Facsimile 703/
358-1735); or Chief, Endangered Species Division, National Marine
Fisheries Service, Office of Protected Resources, 1315 East-West
Highway, Silver Spring, MD, 20910 (Telephone 301/713-1401, Facsimile
301/713-0376).
FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division
of Endangered Species, Fish and Wildlife Service (Telephone (703)358-
2171) or Margaret Lorenz, Policy Coordinator, Endangered Species
Division, National Marine Fisheries Service (Telephone (301) 713-1401).
SUPPLEMENTARY INFORMATION:
Background
On June 12, 1997, the Services issued a draft policy (62 FR 32178),
and the FWS issued proposed regulations to implement the policy (62 FR
32189). With this policy, the Services intended to facilitate the
conservation of listed species through a collaborative approach with
non-Federal citizens, States, local governments, Tribes, businesses,
organizations, and other non-Federal property owners which are
stakeholders in the conservation of these species. With the proposed
policy and the related regulations, the Services intended to create
incentives for non-Federal property owners to implement conservation
measures for certain listed species by providing certainty with regard
to possible future land, water, or resource use restrictions should the
covered species later become more numerous as a result of the property
owners actions. Non-Federal property owners, who through a Safe Harbor
Agreement commit to implement voluntary conservation measures for a
listed species will receive assurances from the Services that
additional conservation measures will not be required and additional
land, water, or resource use restrictions will not be imposed should
the covered species become more numerous as a result of the property
owners' actions.
Much of the nation's current and potential fish and wildlife
habitat is on property owned by private citizens, States,
municipalities, Tribal governments, and other non-Federal entities.
Conservation efforts on non-Federal property are critical to the
survival and recovery of many endangered and threatened species. The
Services strongly believe that a collaborative stewardship approach to
the proactive management of listed species involving government
agencies (Federal, State, and local) and the private sector is critical
to achieving the ultimate goal of the Endangered Species Act (Act):
recovery of threatened and endangered species. The recovery of certain
species can benefit from short-term and mid-term enhancement,
restoration, or maintenance of terrestrial and aquatic habitats on non-
Federal property. The ``Safe Harbor'' approach provides an avenue to
garner the non-Federal landowners' support for species conservation on
non-Federal lands.
Many property owners are willing to voluntarily manage their
property to benefit listed fish and wildlife, provided these beneficial
actions do not result in new restrictions being placed on the future
use of their property. Beneficial management includes actions to
enhance, restore, or maintain habitat (e.g., restoring habitat through
prescribed burning, restoring hydrological conditions) so that it is
suitable for listed species. Because such proactive management actions
cannot be mandated or required by the Act, failure to conduct these
activities would not violate any of the Act's provisions. Although
property owners recognize the benefits of proactive habitat
conservation activities to help listed species, some are still
concerned that additional land, water, and/or natural resource use
restrictions may result if listed species colonize their property or
increase in numbers or distribution due to their conservation efforts.
Their concern centers on the applicability of the Act's section 9
``take'' prohibitions if listed species occupy their property, as a
result of their conservation-oriented property management actions.
Landowners whose properties support endangered or threatened species as
a result of their positive, voluntary conservation efforts might
violate section 9 of the Act if they significantly develop, modify, or
manage those properties in a way that subsequently causes incidental
take of those species.
Section 9 of the Act prohibits the ``take'' of listed fish and
wildlife species, which is defined in section 3(18) to include, among
other things, killing, harming or harassing. The Act's implementing
regulations, as promulgated by the FWS (50 CFR 17.3), and proposed by
NMFS (63 FR 24148) define ``harm'' to include ``significant habitat
modification or degradation where it actually kills or injures wildlife
by significantly impairing essential behavioral patterns, including
breeding, feeding and sheltering.''
This final Safe Harbor policy encourages property owners to
voluntarily conserve threatened and endangered species without the risk
of
[[Page 32718]]
further restrictions pursuant to section 9 of the Act. Previously, the
FWS has provided Safe Harbor type assurances to non-Federal property
owners based on various authorities under the Act, including incidental
take statements under section 7(a)(2) and incidental take permits under
section 10(a)(1)(B). After further consideration of such alternatives
and an evaluation of other provisions of the Act, the Services have
determined that the section 10(a)(1)(A) ``enhancement of survival''
permit provisions provide the best mechanism to carry out a permanent
Safe Harbor policy that provides the necessary assurances to
participating property owners, while also providing conservation
benefits to the covered species. For landowners who are participants in
other Federal programs (e.g., Farm Bill or Partners for Fish and
Wildlife programs), FWS is in the process of developing an appropriate
process to provide assurances on a programmatic basis to the landowners
as long as a net conservation benefit is achieved for listed species
covered by the Agreements. Assurances already provided by FWS under
sections 7 or 10(a)(1)(B) would still be valid, and revision of those
Agreements is unnecessary. Finalizing this policy provides national
consistency in the development of Safe Harbor Agreements (Agreements)
and links the policy to an expanded ``enhancement of survival'' permit
program through section 10(a)(1)(A) of the Act.
FWS has also published final regulations to implement this policy
in today's Federal Register. This final policy and final rule provides
the FWS procedures to implement the Safe Harbor policy. NMFS will
develop and propose regulatory changes to implement this policy at a
later date. These regulations will govern the issuance of ``enhancement
of survival'' permits under section 10(a) (1)(A) of the Act to provide
the assurances to participating landowners through Safe Harbor
Agreements.
Summary of the Draft Policy
The draft Safe Harbor policy (62 FR 32178) encouraged non-Federal
landowners to maintain or enhance existing endangered species habitat,
to restore listed species' habitats, or to manage their lands in a
manner that benefits listed species that would be covered by an
agreement. In return, the Services would provide assurances that future
activities would not be subject to the Act's restrictions beyond those
restrictions applicable to the property at the time of enrollment in
the program. The draft policy recognized that many non-Federal
landowners are interested in restoring, enhancing, and/or maintaining
natural habitats on their lands, thus potentially benefiting listed
species. However, non-Federal landowners' willingness may be hindered
by a fear that the Services will enforce section 9 due to their
beneficial actions, their lands are colonized by listed species, or
listed species' numbers increase.
The draft policy contained provisions protecting any listed species
covered by an Agreement and occupying a landowner's property at the
time of enrollment in the program by including them in the baseline
conditions. If species were included in the baseline conditions, an
``incidental take'' would not be allowed. However, if the numbers or
range of those covered species increases because of voluntary
conservation measures conducted in accordance with a Safe Harbor
Agreement, the landowner would be authorized to incidentally ``take''
those individuals above the baseline without penalty. These
arrangements would be formalized through a streamlined permitting
process and an Agreement or similar instrument between the landowner
and the Services. The draft policy also considered a streamlined
process where the Services would issue a blanket permit to an
appropriate agency or organization that would in turn issue
``Certificates of Inclusion'' or ``Participation Certificates'' to
landowners. The ultimate goal of the draft policy was to encourage non-
Federal landowners to voluntarily implement beneficial management
actions for those listed species that occur on their lands or would be
attracted as a result of the beneficial management actions.
Summary of Comments Received
The Services received more than 70 comment letters on the draft
policy from a wide variety of entities, including Federal, State and
County agencies, industry, conservation groups, coalitions, and private
individuals. The Services considered all relevant information and
recommendations received during the public comment period. Some of the
commenters addressed issues that were applicable to the implementing
regulations as well as the draft policy. Both the final policy and
regulations have been amended, where appropriate.
The following is a summary of the comments on the draft policy and
the Services' responses.
Issue 1. Many commenters expressed concern regarding the
appropriateness of the Services entering into Safe Harbor Agreements
and suggested that the Services provide guidance on how to determine
whether a Safe Harbor Agreement is appropriate and under what
circumstances the Services would enter into such Agreements.
Response 1. The Services agree that Safe Harbor Agreements may not
be appropriate for all types of species in all situations. If a
property owner is taking a listed species and needs an immediate
``incidental take'' authorization, application for and development of a
Habitat Conservation Plan (HCP) and issuance of an incidental take
permit under section 10(a)(1)(B) would be more appropriate. Safe Harbor
Agreements also are not appropriate in situations that do not meet the
net conservation benefit standards of this policy. The Services will
determine on a case-by-case basis whether or not a particular proposed
Agreement actually meets the standards of the Safe Harbor policy and
its implementing regulations and whether a Safe Harbor Agreement would
be an appropriate means of enhancing the survival of the species
covered by an agreement. For example, translocating individuals from a
habitat preserved in perpetuity to a site with zero baseline condition
may not achieve a net conservation benefit for the species. This is
because the habitat the species is using could be altered or destroyed,
which would put the species at risk. Each Agreement will have an
appropriate public review and comment period, and after considering all
available information, the Services will determine if the permit can be
issued.
Issue 2. Commenters stated that the concept of baseline and how
baseline conditions will be determined needs to be clarified. Some
commenters also provided recommendations on how to determine baseline
conditions.
Response 2. The Services acknowledge that the concept of baseline
determination needs further clarification, and because of its crucial
importance to the overall implementation and success of this policy,
the discussion of this concept is expanded. The Services also further
clarify how baseline conditions should be determined, the intent of the
Services in determining baseline conditions, and the implications of
these determinations. The intent of the Services in determining
baseline conditions is to ensure that the protection provided to
covered listed species is not eroded below current levels. The intent
is to provide participating landowners with a clear understanding of
their assured rights to return enrolled lands to conditions existing
prior to the Agreement (i.e.,
[[Page 32719]]
baseline conditions) and what expectations exist for all participants
in terms of performance under the Agreement.
Issue 3. Numerous commenters raised concerns regarding the
determination of baseline conditions based on the number of individuals
of a listed species occupying or using the enrolled lands. These
concerns are based on the fact that population numbers of a species in
the wild often fluctuate naturally (e.g., between years and between
seasons). If, for example, the baseline was established as the number
of individual animals present during a period of naturally high
abundance, a participating landowner could be interpreted to be in non-
compliance with the Agreement if they returned the enrolled lands to
baseline when population numbers were naturally low, when in fact the
available habitat area remained unchanged and the landowner took no
action that violated the Agreement.
Response 3. The Services intend to provide flexibility during
implementation of the policy by providing that baseline conditions will
be mutually agreed upon by the participating landowner and the
Services, and will be determined by using either population numbers of
listed species or occupied habitat acreage, or both. The known or
expected seasonal or natural variation of population numbers should be
described in the Agreement and will help form the baseline
determination of the enrolled lands. Similarly, if occupied habitat is
used to determine baseline, the quality, acreage, and characteristics
of the habitat sustaining individuals of the covered species within the
enrolled lands will be described and evaluated. The policy has been
amended to address these concerns and to further clarify the section
discussing baseline.
Issue 4. A number of commenters expressed concern regarding the
land, water, and/or natural resource use that the enrolled lands would
be returned to after the Agreement expires. Commenters were concerned
whether such use would be compatible with maintaining the baseline
conditions.
Response 4. Landowners who have complied with the terms of the
Agreements and wish to use their lands in a manner different from their
original use certainly retain the right to do so without any additional
restrictions under the Act as long as the baseline is maintained.
However, if the proposed use of the enrolled lands would result in
incidental take of the species and is inconsistent with maintaining the
baseline conditions, then separate authorization for such take would be
required and is not covered by the Safe Harbor Agreement. In other
words, the same land, water, and/or natural resource use restrictions
that applied to the property prior to the Safe Harbor Agreement would
still apply and the landowner would have to obtain the appropriate
incidental take authorization under the appropriate provisions of the
Act. If the baseline conditions were zero, based on the existence of
unoccupied habitat, and these habitat areas became occupied as a result
of the activities undertaken under the Agreement, no further
authorization would be required. However, the Services would work with
the landowner to relocate the species, if appropriate, before any
habitat modification back to the baseline occurs, or extend the
Agreement if the landowner so desires.
Issue 5. Numerous commenters supported the ``net conservation
benefit'' standard in the policy. Commenters had significantly
different interpretations of the meaning of ``net conservation
benefit,'' however, and many requested further clarification of the
concept.
Response 5. This crucial and fundamental principle of the Safe
Harbor policy caused confusion and a number of different
interpretations. Therefore, this section of the policy has been revised
to clarify the Services' intent and the ``net conservation benefit''
concept. These net conservation benefits may result from reducing
fragmentation and increasing the connectivity of habitats, maintaining
or increasing populations, insuring against catastrophic events,
enhancing and restoring habitats, buffering protected areas, and
creating areas for testing and implementing new conservation
strategies.
Issue 6. Several commenters requested clarification on how the
Agreements can be terminated and what were the rights and
responsibilities of the participating landowner.
Response 6. The length of Safe Harbor Agreements must be of
sufficient duration to reasonably allow enough time to achieve the
expected ``net conservation benefit'' for the listed species covered by
the Safe Harbor Agreement. For example, if restoring suitable habitat
for a species normally takes five years of active management, and the
proposed Agreement is limited to providing suitable habitat for only
three years, it would not be appropriate to enter into this Agreement.
However, since these Agreements are voluntary, the Services recognize
and respect the landowners' right to request early termination of their
Agreements. The final Safe Harbor policy provides a mechanism to allow
landowners to terminate their voluntary Agreements before the
expiration date. The Services expect the number of landowners
requesting early termination to be minimal based on the FWS's
experience with the Partners for Fish and Wildlife Program.
Issue 7. Many commenters expressed concern that the proposed
process for developing Agreements and issuing the necessary permit to
provide the Safe Harbor assurances would be too cumbersome. Some
commenters also suggested the Services should consider a ``blanket,''
``master,'' or ``programmatic'' permitting process to further
streamline the development of Safe Harbor Agreements.
Response 7. The process established in the draft Safe Harbor policy
and implementing regulations was basically intended to address
situations where a single landowner approaches the Services and is
willing to conduct beneficial management actions on behalf of listed
species, but is concerned regarding potential future section 9
limitations that could result from these voluntary actions. The draft
Safe Harbor policy did not explicitly discuss the potential for using
``blanket,'' ``master,'' or ``programmatic'' permits to provide
assurances to landowners interested in managing habitat for listed
species on their property. However, the FWS has used a section
10(a)(1)(B) ``programmatic'' permit very successfully in the last few
years. Clarifying language has been added to the final Safe Harbor
policy and implementing regulations to allow for the possibility of
using ``programmatic'' permits whenever appropriate. For example, the
development of Statewide Safe Harbor programs, where a State agency or
an appropriate entity acts as a permit holder and has the authority to
include individual landowners through the issuance of ``Certificates of
Inclusion'' or ``Participation Certificates,'' provides the perfect
circumstance for the use of ``programmatic'' Safe Harbor Agreements and
associated enhancement of survival permits. In the final policy, the
Services recognize that significant conservation benefits on a
landscape scale can be provided through these ``programmatic'' Safe
Harbor Agreements and associated permits.
Issue 8. Several commenters expressed concern about the effects
actions taken on enrolled lands may
[[Page 32720]]
have on neighboring non-enrolled lands and expressed the need for
clarification.
Response 8. The Services recognize the implications to neighboring
landowners of the successful implementation of management actions on
enrolled lands. Further, the Services recognize and acknowledge that
some landowners may be reluctant to initiate management actions that
may have land, water, and/or natural resource use implications to
neighboring landowners. The implications to neighboring landowners with
non-enrolled lands will be assessed on a case-by-case basis. For
example, when the Services believe that occupation of non-enrolled
neighboring lands is likely, the Services will make every effort to
include the neighboring landowner as a signatory party to the Agreement
and to be included in the Safe Harbor Agreement and associated permit,
thus extending the Safe Harbor assurances. For example, neighboring
landowners of aplomado falcon (Falco femoralis) release sites in Texas
were included in the permit for the Safe Harbor Agreement, in case
that, as a result of the cooperators' actions, falcons inhabit their
lands.
Issue 9. A number of commenters requested further clarification of
the applicability of future section 7 consultations for Federal actions
affecting the enrolled properties.
Response 9. Section 7 would continue to apply to Federal actions
affecting the enrolled properties. However, if a participating
landowner subsequently proposed an activity that required Federal
approval (e.g., CWA section 404 permit) within the enrolled lands and
such activity would not alter the status of the covered listed species
below the original baseline conditions, as long as the activity does
not diminish the baseline conditions, it is not likely that the species
will be jeopardized. The ``no-jeopardy'' conclusion would be reached
because the affected individuals of the species covered by the
Agreement would be the same authorized to be taken under the Safe
Harbor Agreement which the Services would already have found were
``takes'' that would not result in jeopardy under the issued section
10(a)(1)(A) permit. Furthermore, it will be the policy of the Services
to include in the Biological Opinion ``reasonable and prudent
measures'' necessary to minimize the expected incidental take which are
identical to the terms and conditions included in the Safe Harbor
Agreement and associated enhancement of survival permit issued to the
participating landowner. Some commenters expressed concern regarding
proposed Federal actions within the enrolled lands that are not
initiated by the participating landowner (e.g., highway construction
through condemnation of enrolled lands). Under these circumstances,
normal section 7 compliance and procedures would apply and the
necessary alternatives or measures to comply with section 7 may not be
the same as those included in the Safe Harbor Agreement, regardless of
whether take of covered species moves them below baseline.
Issue 10. Many commenters expressed concerns regarding the
confidentiality of the information generated as a result of entering
into these Agreements and the standards that this information will be
subjected to before making decisions. Most commenters requested a
commitment from the Services to keep all information regarding the
development of Safe Harbor Agreements confidential.
Response 10. The Services recognize the landowners' concerns
regarding privacy related to management actions they plan to implement
on their lands and their desires to guard information regarding
occupancy of listed species on their lands. However, the Act and its
implementing regulations require an open and public process whenever
permits are issued. Furthermore, the Services' implementation guidance
and policy are to encourage an open process. Information used to make
determinations for section 10 (a)(1)(A) permit issuance must be
available for public review and comment. The Services are committed to
ensuring an open and public approach to the implementation of this
program.
Issue 11. A number of commenters felt that the draft policy should
address how enrolled lands will be counted toward achieving recovery
and the appropriateness of counting individuals covered under Safe
Harbor Agreements toward recovery goals.
Response 11. Before entering into any Safe Harbor Agreement, the
Services must make a written finding that all covered species would
receive a net conservation benefit from management actions undertaken
pursuant to the Agreement. Net conservation benefits contribute,
directly or indirectly, to the recovery of the covered species, but
this contribution toward recovery may be of varying duration and not
permanent in nature, and the Services will not rely on these benefits
by themselves as the basis to delist any species. Cumulatively,
conservation benefits from Safe Harbor Agreements are likely to
contribute to the recovery of a species over time by providing
incentives to improve habitat or increase population numbers; reduce
the effects of catastrophic events; provide buffers for protected
areas; and establish areas for testing and developing new and
innovative conservation strategies. Nevertheless, it would not be
prudent to base delisting decisions solely on conservation benefits
provided through Safe Harbor Agreements because of the ultimate right
of a participating landowner to return their property to its original
baseline condition.
Issue 12. Many commenters requested clarification and expressed
concerns regarding the appropriateness of including unlisted species in
these Agreements.
Response 12. Concurrently with this policy, the Services are
publishing in the Federal Register of June 17, 1999, the final policy
on Candidate Conservation Agreements with Assurances, which provides
the opportunity to take action on behalf of declining species before
listing becomes necessary. The Services acknowledge that situations may
arise where a property owner may want to conserve numerous species,
both listed and unlisted, on their property, and may want to enter into
both a Safe Harbor and Candidate Conservation Agreement. The Services
are considering methods to streamline and combine these two processes.
Issue 13. Many commenters stated that there was a need for
monitoring standards and that the Services must ensure monitoring of
Agreements.
Response 13. The Services recognize the need to develop and
implement appropriate monitoring programs for the Safe Harbor Agreement
to ensure that the ``net conservation benefits'' are being achieved.
The monitoring of the implementation of the Safe Harbor Agreement will
be part of the process to learn about the effectiveness of various
conservation techniques and to ensure that the status of the species is
not reduced below the original baseline condition. The scale and
complexity of the Agreement may determine what additional monitoring is
needed. However, monitoring standards are more appropriately generated
in implementation guidance, which the Services are committed to
developing in the near future with public review and comment. However,
it is appropriate to include in the Safe Harbor policy certain guiding
principles on the issue of monitoring and to provide general interim
guidelines and the conceptual basis for the development of monitoring
provisions.
Issue 14. Several commenters suggested that tax and financial
incentives should be offered as part of
[[Page 32721]]
the regulatory assurances included in the draft policy.
Response 14. The Services agree that tax incentives or financial
payments would also be effective in furthering voluntary actions by
non-Federal landowners and would help defray the costs of implementing
some of the necessary management activities. However, the Services do
not have the authority to provide tax incentives without an express
authorization from Congress. The Services' Ten Point-Plan for the fair
implementation of the Act included a recommendation to Congress on
these types of incentives as a way to garner additional support for
voluntary management actions to benefit listed species. In addition, in
fiscal year 1999, the FWS will initiate a pilot grant program to help
provide some limited funding to participating landowners for the
implementation of management activities under the auspices of signed
Safe Harbor Agreements.
Issue 15. A few commenters requested further clarification
regarding the need for National Environmental Policy Act (NEPA)
compliance in terms of implementing the Safe Harbor program.
Response 15. The Services agree that NEPA compliance is necessary
for the implementation of the Safe Harbor program. However, the
Services expect that Safe Harbor Agreements/permits will provide
benefits to covered listed species and their habitats and would have
minor or no effects on other environmental values or resources. Because
these permits can result in incidental take of individuals and/or
habitats that would not exist but for these Agreements, and because
current baseline conditions will be maintained under these Agreements,
the Services expect that activities conducted within the Safe Harbor
program would qualify for a categorical exclusion. Regardless of NEPA
public review provisions, the Act's regulations to implement Safe
Harbor Agreements and permits impose specific public review and comment
requirements. For large-scale agreements that may encompass an entire
State or a significant portion of the covered listed species' range,
the Services are committed to preparing the necessary NEPA
documentation.
Issue 16. A number of commenters inquired about the status of the
necessary implementing regulations for the National Marine Fisheries
Service.
Response 16. NMFS expects to amend its section 10(a)(1)(A)
regulations to accommodate Safe Harbor Agreements in the next few
months. Currently, NMFS does not have any approved Safe Harbor
agreements and none are under consideration. However, we welcome
inquiries on possible Agreements which would further the protection of
listed species under NMFS' jurisdiction. The lack of revised
10(a)(1)(A) regulations should not discourage landowners from seeking
an agreement with NMFS.
Issue 17. A number of commenters inquired about the interrelation,
if any, between the Safe Harbor program and other Federal habitat
restoration efforts and programs (e.g., Farm Bill related programs).
Response 17. The Services recognize that it would be beneficial if
other Federal wildlife habitat restoration and/or enhancement programs
also were able to provide Safe Harbor type assurances. Currently, the
Services are exploring streamlined processes to provide Safe Harbor
type assurances to non-Federal participants of these programs, some of
which are implemented by other agencies of the Federal government
(e.g., Farm Bill programs run by the Natural Resources Conservation
Service). The Services are exploring potential possibilities to provide
these Safe Harbor type assurances to the private landowners that
participate in the Federal programs as long as the affirmative
conservation mandates of Federal agencies are met.
Issue 18. Several commenters requested further clarification as to
the duration of the assurances provided under the Safe Harbor program.
Response 18. In general, the assurances provided under the Safe
Harbor program ``run with the land'' as long as the permit is effective
and as long as the participating landowner is implementing the agreed
upon terms of the Agreement and permit. The Services intend that the
assurances will continue even after the ``net conservation benefit''
standard has been achieved, thus encouraging the landowner to maintain
the benefits of the management actions and refrain from returning the
land to baseline conditions at the end of the Agreement. If subsequent
owners of the land are willing to sign a new Agreement, continue
necessary management actions, and maintain the baseline once the net
conservation benefit has been achieved, the assurances will continue. A
permit that ``runs with the land'' provides the participating landowner
(or subsequent landowner) with the option of not immediately returning
his or her property back to its original baseline conditions.
Clarifying language has been included in the final policy.
However, the Services are prepared as a last resort to revoke a
permit implementing a Safe Harbor Agreement where continuation of the
permitted activity would be likely to result in jeopardy to a species
covered by the permit, although the Services would first have to
exercise all possible means to remedy such a situation prior to taking
such a step.
Revisions to the Draft Policy
The following represents a summary of the revisions to the proposed
policy as a result of the consideration of the public comments.
(1) The Services clarified how baseline should be determined and
the implications of these determinations.
(2) The Services clarified the ``net conservation benefit''
language to indicate that the benefits should be reasonably expected to
occur during the Agreement.
(3) The final Safe Harbor policy provides a mechanism to allow
landowners to terminate their voluntary Agreements before the
expiration date.
(4) The final Safe Harbor policy and implementing regulations
establishes specific public review periods.
(5) The Services have clarified in the final policy how Safe Harbor
Agreements are to be treated in determining the recovery of a listed
species covered by such Agreements.
(6) The Services included in the final policy general interim
guidelines regarding monitoring provisions for Safe Harbor Agreements.
(7) The Services clarified how they will address neighboring
property owners to non-Federal property owners who receive Safe Harbor
assurances.
Final Safe Harbor Policy
Part 1. What Is the Purpose of the Policy?
Because many endangered and threatened species occur exclusively,
or to a large extent, upon privately owned property, the involvement of
the private sector in the conservation and recovery of species is
critical to the eventual success of these efforts. Private property
owners are often willing to be partners in the conservation and
recovery of listed fish, wildlife, and plant species and their
habitats. However, they often may be reluctant to undertake proactive
activities that increase the likelihood of use of their properties by
endangered and threatened species due to their fear of future
additional property-use restrictions. Safe Harbor Agreements are a
means of providing incentives to property owners to restore, enhance,
or maintain habitats and/or populations of listed species that result
in a net conservation benefit to these species. Although such
Agreements may not permanently conserve or recover such populations or
their habitats, they
[[Page 32722]]
nevertheless offer important short-term, mid-term, and, in some cases,
long-term net conservation benefits. These net conservation benefits
may result from reducing fragmentation of habitats, increasing the
connectivity of habitats, maintaining or increasing populations,
insuring against catastrophic events, enhancing and restoring habitats,
buffering protected areas, and creating areas for testing and
implementing new conservation strategies.
The purpose of this policy is to ensure consistency in the
development of Safe Harbor Agreements. Safe Harbor Agreements encourage
proactive species' conservation efforts by private and other non-
Federal property owners while providing certainty relative to future
property-use restrictions, even if these efforts attract listed species
onto enrolled properties or increase the numbers or distribution of
listed species already present on their properties. These voluntary
Agreements will be developed between either Service, or the Services
jointly, and private and other non-Federal property owners. The
Services will closely coordinate development of these Agreements with
the appropriate State fish and wildlife or other agencies and any
affected Tribal governments. Collaborative stewardship with State fish
and wildlife agencies is particularly important given the partnerships
that exist between the States and the Services in recovering listed
species. Approved Safe Harbor Agreements will be covered under a new
category of ``enhancement of survival'' permits issued under section
10(a)(1)(A) of the Act.
Safe Harbor Agreements may be initiated by property owners, or the
Services may take the initiative on their own or in concert with other
Federal or State agencies to encourage property owners to voluntarily
enter into Safe Harbor Agreements for a given area, particularly when
many non-Federal parcels of property are involved. The Services will
work with the participating landowner to develop an ``enhancement of
survival'' permit application and the Safe Harbor Agreement. The
Services will assist landowners in identifying actions that the
landowners will voluntarily undertake or forego to provide a net
conservation benefit to the listed species to be covered by the
Agreement.
Development of an ``enhancement of survival'' section 10(a)(1)(A)
permit application and an adequate Safe Harbor Agreement are
intricately linked. All parties to the Agreement will coordinate the
development of the Agreement to ensure that the measures included in
the Agreement and permit are consistent.
The Services recognize that Safe Harbor Agreements are not
appropriate under all circumstances. In particular, where the land or
water is occupied by a listed species and the property owner seeks
immediate ``incidental take'' authorization, application for and
development of a Habitat Conservation Plan (HCP) and issuance of an
incidental take permit under section 10(a)(1)(B) is the appropriate
tool. Also, an Agreement is not appropriate in situations that do not
meet the net conservation benefit standards of this policy. For
example, if the Services can reasonably anticipate that a proposed
Agreement would only redistribute the existing population of a listed
species or attract a species away from a habitat that has provided
long-term protection to a habitat without such protection, the Services
would not enter into an Agreement. Also, if a species is so depleted or
its habitat so degraded that considerable improvement over baseline
conditions is necessary to result in a net conservation benefit, an
Agreement may not be appropriate. For certain aquatic, riverine, and/or
riparian species it may be too difficult to reach a net conservation
benefit since returning to the baseline conditions could have serious
negative effects that would negate or outweigh the benefits achieved
through the Agreement.
Availability of resources will also be a governing factor for the
Services. While the Services expect the interest in Safe Harbor
Agreements and the demand for technical assistance to property owners
to increase, Safe Harbor Agreements are developed by FWS using limited
funds appropriated for recovery activities. Therefore, the Services
will focus on potential Agreements that provide the greatest
contribution to the recovery of multiple listed species. Another factor
will be whether there is sufficient information to develop sound
conservation measures. The Services will work with State, Tribal, and
other interested parties to develop information on species'
conservation requirements that have not been adequately documented in
the scientific literature.
Part 2. What Definitions Apply to This Policy?
The following definitions apply for the purposes of this policy.
``Baseline conditions'' means population estimates and distribution
and/or habitat characteristics and determined area of the enrolled
property that sustain seasonal or permanent use by the covered species
at the time the Safe Harbor Agreement is executed between the Services
and the property owner.
``Covered species'' means a species of fish or wildlife that is the
subject of a Safe Harbor Agreement. Covered species are limited to
species that are Federally listed as endangered or threatened and are
included in the Safe Harbor Agreement and accompanying enhancement of
survival permit.
``Enhancement of survival permit'' means a permit issued under the
authority of section 10(a)(1)(A) of the Act.
``Enrolled property'' means all private or non-Federal property,
waters, or natural resources to which the assurances in a Safe Harbor
Agreement apply and on which incidental taking is authorized under the
enhancement of survival permit.
``Management activities'' are voluntary conservation actions to be
undertaken by a property owner that the Services believe will benefit
the covered species.
``Net conservation benefit'' means the cumulative benefits of the
management activities identified in a Safe Harbor Agreement that
provide for an increase in a species' population and/or the
enhancement, restoration, or maintenance of covered species' suitable
habitat within the enrolled property, taking into account the length of
the Agreement and any off-setting adverse effects attributable to the
incidental taking allowed by the enhancement of survival permit. Net
conservation benefits must be sufficient to contribute, either directly
or indirectly, to the recovery of the covered species.
``Non-Federal property owner'' includes, but is not limited to,
private individuals, organizations, businesses, State, local, and
Tribal governments, and other non-Federal entities who own the enrolled
property. Federal agencies can be involved in the development of Safe
Harbor Agreements, but will not receive the same assurances provided
through these Agreements as non-Federal property owners.
``Safe Harbor Agreement'' means an Agreement signed by the Services
and a property owner and any other cooperator, such as the holder of a
``programmatic'' permit, if appropriate, that (a) sets forth specific
management activities that the private or non-Federal property owner
will voluntarily undertake or forgo that will provide a net
conservation benefit to covered species and (b) provides the property
owner with the Safe Harbor assurances described within the Agreement
and
[[Page 32723]]
authorized in the enhancement of survival permit.
``Safe Harbor Assurances'' are assurances provided by the Services
to a non-Federal property owner in the Agreement and authorized in the
enhancement of survival permit for covered species. These assurances
allow the property owner to alter or modify enrolled property, even if
such alteration or modification results in the incidental take of a
listed species to such an extent that it returned the species back to
the originally agreed upon baseline conditions. Such assurances may
apply to whole parcels or portions of the owner's property as
designated in the Agreement. These assurances depend on the property
owner complying with obligations in the Agreement and in the
enhancement of survival permit.
Part 3. How Is the Cooperation and Coordination With the States and
Tribes Described in the Policy?
Coordination with the appropriate State agencies and any affected
Tribal governments is important to the success of Safe Harbor
Agreements. Coordination allows the special local knowledge of all
affected entities to be considered in the development of the
Agreements. The Services will work closely with State agencies on
matters involving the distribution of materials describing the Safe
Harbor Agreement policies and programs, the determination of acceptable
baseline conditions, and development of appropriate monitoring efforts.
Because of the Services' trust responsibilities, the Services will also
closely coordinate and consult with any affected Tribal government that
has a treaty right to any fish or wildlife resources covered by a Safe
Harbor Agreement.
Part 4. What Is Species Net Conservation Benefit From Safe Harbor
Agreements?
Before entering into any Safe Harbor Agreement, the Services must
make a written finding that all covered species will receive a net
conservation benefit from management actions undertaken pursuant to the
Agreement. The finding must clearly describe the expected net
conservation benefits and how the Services reached that conclusion. Net
conservation benefits must contribute, directly or indirectly, to the
recovery of the covered species. This contribution toward recovery will
vary and may not be permanent. The Services will not rely solely on
these benefits as the basis to delist any species. A Safe Harbor
Agreement does not have to provide permanent conservation for enrolled
property; however, Agreements must be sufficient to provide a net
conservation benefit to all covered listed species, thereby
contributing to the recovery of such species over time.
Conservation benefits from Safe Harbor Agreements include, but are
not limited to, reduction of habitat fragmentation rates; the
maintenance, restoration, or enhancement of habitats; increase in
habitat connectivity; maintenance or increase of population numbers or
distribution; reduction of the effects of catastrophic events;
establishment of buffers for protected areas; and establishment of
areas to test and develop new and innovative conservation strategies.
The Services believe a ``net conservation benefit'' test is necessary
to justify the issuance of an enhancement of survival permit under
section 10(a)(1)(A) of the Act. The contribution to the recovery of
listed species by Safe Harbor Agreements must be evaluated carefully,
since realized benefits from these Agreements will be affected by the
duration of the Agreement, among other things.
Part 5. What Are the Standards and Development of a Safe Harbor
Agreement and Permit Issuance Under Section 10(a)(1)(A) of the Act?
A non-Federal property owner may obtain an enhancement of survival
permit under section 10 (a)(1()A) of the Act to incidentally take a
covered species above the agreed upon baseline conditions of the Safe
Harbor Agreement, if the Agreement satisfies the following
requirements:
The Agreement must--
(1) Specify the species and/or habitats covered, including the
habitat conditions, and identify the enrolled property covered by the
Agreement;
(2) Include a full description of the agreed upon baseline
conditions for each of the covered species within the enrolled
property;
(3) Identify management actions that would be undertaken to
accomplish the expected net conservation benefits to the species, where
and when the benefits would be achieved, and the agreed upon time
frames these management actions will remain in effect to achieve the
anticipated net conservation benefits;
(4) Describe any incidental take associated with the management
actions during the term of the Agreement;
(5) If appropriate, incorporate a notification requirement to
provide the Services or appropriate State agencies with a reasonable
opportunity to rescue individuals of a covered species before any
authorized incidental taking occurs;
(6) Describe what activities would be expected to return the
enrolled property to baseline conditions and the extent of incidental
take that would likely result from such activities;
(7) Satisfy other requirements of section 10 of the Act; and
(8) Identify a schedule for monitoring and the responsible parties
who will monitor maintenance of baseline conditions, implementation of
terms and conditions of the Agreement, and any incidental take as
authorized in the permit.
The Services will consult under section 7 of the Act on proposed
issuance of the enhancement of survival permit.
Part 6. What Are Baseline Conditions?
The Services, the property owner, and any other cooperator(s) must
accurately describe the baseline conditions of the property and species
covered by the Safe Harbor Agreement. The baseline conditions must
reflect the known biological and habitat characteristics that support
existing levels of use of the property by species covered in the
Agreement. However, for circumstances beyond the control of the
property owner (e.g., loss of nest trees due to storm damage), the
parties to the Agreement may revise the baseline conditions to reflect
the new circumstances and may develop a new baseline upon which all
parties agree.
(A) How do you Determine Baseline Conditions? This policy requires
a full description of baseline conditions for any species covered in an
Agreement (see Part 5 above). The Services, or appropriate cooperators,
with the concurrence of the participating property owner, will describe
the baseline conditions for the enrolled property in terms appropriate
for the covered species such as number and location of individual
animals, if determinable, existing habitat areas or characteristics
that support the species covered at the time of the Agreement, and
other appropriate attributes. On-site inspections, maps, aerial
photographs, remote sensing, or other similar means can help determine
baseline conditions. To the extent determinable, the parties to the
Agreement must identify and agree on the degree to which the enrolled
property is inhabited, permanently or seasonally, by the covered
species. When either Service does not directly determine the baseline
conditions, they must review and concur with the determination before
entering into an Agreement, and, if necessary, conduct on-site visits.
Formulation of baseline conditions can incorporate information provided
by the
[[Page 32724]]
property owner and any other appropriate agency or species experts, as
appropriate. For species that are extremely difficult to survey and
quantify, an estimate and an indirect measure (e.g., number of suitable
acres of habitat of the species) is acceptable and should be based on
the best available techniques and information. The Services will
develop the estimate, and hence baseline conditions, following a
protocol agreed upon by all parties to the Agreement. The Services will
use population estimates, where available, to determine the degree of
occupancy of the enrolled lands by covered species. However, in most
cases, the baseline conditions will be described as the amount and
condition of habitat in the enrolled lands and not the number of
individuals of covered species, since the number of individuals could
fluctuate over time. For example, if population numbers did vary
naturally during the term of an Agreement, and the baseline was
described as number of individual animals, the landowner could be found
to be in non-compliance with an Agreement when a return to baseline is
desired simply because of natural population fluctuations and not as a
result of his or her own actions. In cases where no seasonal or
permanent occupation by covered listed species is documented, the
Services will determine baseline conditions to be zero, unless the
participating landowner agrees to a higher baseline.
(B) Are Plants Covered by the Safe Harbor Policy? The Act's
``take'' prohibitions generally do not apply to listed plant species on
private property. Therefore, the incidental take assurances provided in
this policy are legally not necessary for listed plant species.
However, the FWS strongly encourages and often enters into Agreements
with non-Federal property owners to restore and enhance habitats for
listed plants.
In addition, the Services must review the effects of the Safe
Harbor permit on listed plants under section 7 of the Act, even when
those plants are found on private property. In approving an enhancement
of survival permit and entering into a Safe Harbor Agreement, the
Services must confirm under section 7 that the Agreement is not likely
to ``jeopardize the continued existence'' of any listed plants. In the
interest of conserving listed plants and complying with their
responsibilities under section 7, the Services will encourage a
property owner to voluntarily assist the Services in restoring or
enhancing listed plant habitats present within the enrolled property.
(C) What are the Considerations for Future Section 7 and
Assurances? In reviewing a proposed Safe Harbor Agreement under section
7, the Services must determine whether anticipated future property use
changes within the enrolled property and incidental take consistent
with the established baseline conditions will jeopardize listed species
of fish and wildlife or plants, or destroy or adversely modify
designated critical habitat. If a future action on the enrolled
property with a Federal nexus prompts the need for additional section 7
review, and take of the listed species that does not move them below
baseline conditions is likely, the Services will issue a non-jeopardy
biological opinion and incidental take statement that is consistent
with the Safe Harbor Agreement as long as the activity was initiated by
the participating landowner (e.g., the need for a Clean Water Act
section 404 permit). In particular, the Services will provide the
Federal agency with reasonable and prudent measures to minimize
incidental take that require only implementation of the terms and
conditions provided to the participating landowner in the Safe Harbor
Agreement and associated 10(a)(1)(A) permit. This approach is warranted
because the effects of any incidental take consistent with the
established baseline conditions would previously have been considered
during the Services' intra-agency section 7 review of the proposed
Agreement. However, if the future action was not initiated by the
participating landowner's, (e.g., condemnation of lands for a highway
project), the action agency may receive a Biological Opinion with
reasonable and prudent alternatives or measures that are different from
those included in the affected landowner's Safe Harbor Agreement/
permit.
Part 7. What Are Assurances to Property Owners?
A property owner who enters into an Agreement and later wishes to
return enrolled property to the baseline conditions needs to
demonstrate that the agreed upon baseline conditions were maintained
and that activities identified in the Agreement as necessary to achieve
the net conservation benefit were carried out for the duration of the
Agreement. If the property owner carried out the management actions and
complied with the permit and the Agreement conditions, the property
owner would be authorized to use the property in any manner that does
not result in moving the enrolled property to below baseline
conditions. These assurances run with the enrolled lands and are valid
for as long as the participating landowner is complying with the Safe
Harbor Agreement and associated permit. An Agreement may be of a
relatively short duration if the management actions and net
conservation benefits can be achieved within, for example, 10 years.
However, a 10(a)(1)(A) permit may extend beyond the life of an
Agreement since the assurances will run with the land, not just the
length of the Agreement. Because the assurances run with the enrolled
lands for as long as the permit is valid, the participating landowner
has the opportunity to sustain covered species within the enrolled
lands even after the expiration of the Safe Harbor Agreement and defer
take, thus extending the temporal extent of the ``net conservation
benefits'' achieved under the Agreement. When land subject to a Safe
Harbor Agreement is transferred, the new landowners will, at their
option, be able to receive assurances by signing a new Agreement and
receiving a new permit.
The Services are prepared as a last resort to revoke a permit
implementing a Safe Harbor Agreement where continuation of the
permitted activity would be likely to result in jeopardy to a species
covered by the permit. Prior to taking such a step, however, the
Services would first have to exercise all possible means to remedy such
a situation.
Part 8. How Does the Services Manage Occupation by Non-Covered or Newly
Listed Species?
The possibility exists that after an Agreement is signed and an
enhancement of survival permit is issued, a listed species not
addressed in the Agreement may occupy enrolled property. If the
Services conclude that the species is present as a direct result of the
property owner's conservation actions taken under the Agreement, the
Services will:
(1) At the request of the property owner, amend the Agreement to
reflect the changed circumstances and describe the baseline conditions
for the added species, as appropriate; and
(2) Review and revise the permit, as applicable, to address the
presence of additional listed species on enrolled property.
The Services will not extend assurances in the permit to a non-
covered listed species if the species was specifically excluded from
the original Agreement at the participating property owner's request,
or if its presence is a result of activities not directly attributable
to the property owner's management activities. However, if the parties
to the Safe Harbor Agreement
[[Page 32725]]
agree that a listed species that was not in the original Agreement
should be included, then addenda to the Agreement and permit are
necessary. If it is appropriate to add species to the Agreement, the
Services must determine enhancement or maintenance actions that are
specific to the newly covered species, baseline conditions, and a net
conservation benefit to that species.
Any change to a Safe Harbor Agreement or amendment to a section 10
(a)(1)(A) permit to include a non-covered species would be subject to
the same review process (e.g., section 7 and NEPA review) and issuance
criteria (standards) as the original Safe Harbor Agreement and permit.
Part 9. Is Monitoring Required?
The Services will ensure that adequate monitoring is included in
each Safe Harbor Agreement/permit. The Services are committed to
providing as much technical assistance as possible in the development
of acceptable monitoring programs. In addition, the public will have an
opportunity to review the monitoring plan during the public comment
period on the issuance of the permit. Monitoring programs must be
agreed upon before finalization of the Agreements and issuance of the
permits. The monitoring component of these Agreements ensure that the
participating landowner is implementing the provisions of these
Agreements. Additionally, these monitoring programs will provide
valuable program implementation information for the Services to
evaluate the overall program and ensure its continued evolution toward
a more effective and efficient program. Larger scale or complex Safe
Harbor Agreements will require more in depth and thorough monitoring
programs.
Part 10. How Does the Services Comply With National Environmental
Policy Act?
The National Environmental Policy Act of 1969 (NEPA), as amended,
and the regulations of the Council on Environmental Quality (CEQ)
require all Federal agencies to examine the environmental impact of
their actions, to analyze a full range of alternatives, and to use
public participation in the planning and implementation of their
actions. The purpose of the NEPA process is to help Federal agencies
make better decisions and to ensure that those decisions are based on
an understanding of environmental consequences. Federal agencies can
satisfy NEPA requirements by either a Categorical Exclusion,
Environmental Assessment (EA), or Environmental Impact Statement (EIS),
depending on the effects of their proposed action.
The Services will review each Safe Harbor Agreement and associated
permit action for any significant environmental, economic, social,
historical, or cultural impact, or for significant controversy (516
Departmental Manual 2, Appendix 2 for FWS and NOAA's Environmental
Review Procedures and NOAA Administrative Order Series 216-6). If the
Services conclude that a significant impact could occur, the issuance
of a permit would require preparation of an EA or EIS, although the
Services believe that the need for an EIS will be rare. General
guidance on when the Services exclude an action categorically and when
and how to prepare an EA or EIS is found in the FWS's Administrative
Manual (30 AM 3) and NOAA Administrative Order Series 216-6. If a Safe
Harbor Agreement and associated permit are not expected to individually
or cumulatively have a significant impact on the quality of the human
environment or other natural resources, the Agreement/permit may be
categorically excluded. The Services are committed to develop NEPA
documentation for complex or large scale (e.g., statewide) Safe Harbor
Agreement/permits to ensure effective environmental review of such
significant actions.
Part 11. Can Agreements Be Transferred?
If a property owner who is party to a Safe Harbor Agreement
transfers ownership of the enrolled property to a non-Federal entity,
the Services will regard the new owner as having the same rights and
obligations with respect to the enrolled property as the original
property owner, if the new property owner agrees to become a party to
the original Agreement and enhancement of survival permit. Actions
taken by the new participating property owner that result in the
incidental take of species covered by the Agreement would be
authorized, so long as the new property owner complies with the
management actions identified in the Agreement and maintains the
baseline conditions. However, the new property owner would not be
responsible for any provisions of the Agreement and would not receive
any assurances relative to section 9 restrictions, unless the new owner
agrees to become party to the Agreement and permit.
All Safe Harbor Agreements will commit the participating property
owner to notify the Services before any transfer of ownership of any
property subject to the Agreement. This will allow the Services to
contact the new property owner to explain the prior Safe Harbor
Agreement and to determine whether the new property owner agrees to
continue the original Agreement or desires to enter a new Agreement. If
the new property owner agrees to continue an existing Safe Harbor
Agreement, the Services will honor the original baseline conditions for
the enrolled property under consideration.
Part 12. Do Property Owners Retain Their Discretion?
Nothing in this policy prevents a participating property owner from
implementing management actions not described in the Agreement as long
as such actions maintain the original baseline conditions and do not
affect the beneficial actions set forth in the Agreement. The Services
will provide technical advice, to the maximum extent practicable, to
the property owner, when requested. Additionally, a participating
landowner that, for circumstances out of the landowner's control, needs
to terminate the voluntary management actions that he or she agreed
upon under the Safe Harbor Agreement, can terminate the Agreement prior
to its expiration date and return the land to baseline conditions even
if the expected ``net conservation benefits'' have not been realized.
For example, if, due to unanticipated circumstances, the participating
landowner needs to generate income to deal with a family emergency, the
landowner has the option of terminating the Agreement with the Services
to use his or her land, water, and/or natural resources to deal with
the emergency.
Part 13. What Is the Discretion of All Parties?
Nothing in this policy compels any party to enter into a Safe
Harbor Agreement. Entering a Safe Harbor Agreement is purely voluntary
for non-Federal entities and the Services, and presumes that the
Agreement will serve the interests of all affected parties. An
Agreement does not otherwise create or waive any legal rights of any
party to the Agreement.
Part 14. How Do the Services Manage Neighboring Landowners?
The potential effects and/or implications of a Safe Harbor
Agreement on neighboring properties may be an important consideration
in deciding whether to enter into a Safe Harbor Agreement. In some
cases, actions carried out voluntarily by a landowner under a Safe
Harbor Agreement may
[[Page 32726]]
result in listed species occupying adjacent properties.
The Services will use the maximum flexibility allowed under the Act
in addressing neighboring properties under Safe Harbor Agreements and
associated take authorizations, including, but not limited to, granting
of incidental take authority to the owners of neighboring lands, where
occupation of neighboring lands is expected as a result of the
Agreement. Neighboring landowners would only be required to agree to
such conditions as would be necessary to ensure that the Agreement does
not circumvent those obligations or requirements, if any, under section
9 of the Act that were applicable at the time the Agreement was signed.
Implications to neighboring landowners with non-enrolled lands will be
determined on a case-by-case-basis, and the Services will make every
effort to include them as a signatory party to the Agreement and
enhancement of survival permit when the occupation of their lands by
covered species is expected. For neighbors to receive the Safe Harbor
Assurances, they would sign an Agreement with the following
requirements: (1) Allow an assessment/establishment of the baseline on
their properties with concurrence by all parties, (2) notify the
Services prior to significantly modifying the habitat, and (3) allow
the Services access to capture and translocate individuals of the
covered species on their property that would be expected to be
adversely affected by those habitat modifications. To facilitate
neighboring landowner's participation, the Services will encourage them
to become signatory parties to these Agreements, where appropriate.
Part 15. Will There Be Public Review?
The Services will encourage property owners to involve the public
in the development of an Agreement. However, public participation must
be agreed to by the property owner. The Services will make every Safe
Harbor Agreement available for public review and comment as part of the
evaluation process for issuance of the associated enhancement of
survival permit. This comment period will generally be 30 days; with
the comment period for large or programmatic Agreements 60 days.
Part 16. What Is the Scope of the Policy?
This policy applies to all Federally-listed species of fish and
wildlife administered by the Services, as provided in the Act and its
implementing regulations.
Dated: March 22, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
Dated June 10, 1999.
Penelope D. Dalton,
Assistant Administrator of Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-15256 Filed 6-11-99; 5:08 pm]
BILLING CODE 4310-55-P