On February 8, the U.S. Fish and Wildlife Service (FWS) proposed regulatory changes (Proposed Rule) focused on the application and approval process for Endangered Species Act (ESA) permits issued under Section 10. Section 10 of the ESA authorizes FWS to permit take of listed species where such take is necessary for scientific purposes or the enhancement of propagation or survival of the species, or where the take is incidental to an otherwise lawful activity. Section 10 permits are used for Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, which are voluntary landowner agreements designed to benefit candidates or listed species, respectively. Section 10 permits also have been used to allow the take of listed species incidental to private development activities through a Habitat Conservation Plan (HCP), which involves the project proponent committing to certain conservation activities.
The Proposed Rule makes several changes to the current Section 10 regulations and codifies certain aspects of FWS guidance. First, it combines Candidate Conservation Agreements (for the protection of species that are candidates for listing) and Safe Harbor Agreements (for the protection of species on private land). Both agreements would be referred to as Conservation Benefit Agreements under the Proposed Rule. The Proposed Rule clarifies that FWS can issue such agreements and permits for non-listed species, including in situations where no listed species are present. The Proposed Rule also codifies various definitions, including “net conservation benefit” for Conservation Benefit Agreements. Additionally, FWS proposes to add a provision, stating that an applicant for a voluntary Conservation Benefit Agreement can choose whether to return the property to the baseline condition. The definition of baseline condition is proposed to mean the population estimates and distribution or habitat characteristics on the enrolled land that could sustain seasonable or permanent use by the covered species at the time FWS executes the agreement.
Second, regarding HCPs, the Proposed Rule incorporates the application and approval requirements found in the HCP Handbook. The Proposed Pule also explains that applications for incidental take permits under Section 10(a)(1)(B) must include an HCP that includes the following (taken from the Five Point Policy in the HCP Handbook):
- Goals and objectives that are measurable biological goals and objectives of the conservation plan.
- Anticipated take, including the expected timing, geographic distribution, type and amount of take, and the likely impact of take on the species.
- Conservation measures to minimize and mitigate the impacts of the incidental take.
- Monitoring measures to ensure the effectiveness of the mitigation and minimization measures, progress toward achieving the biological goals and objectives, and permit compliance.
- An adaptive management plan.
The Proposed Rule is forward-looking, meaning that it only applies to new permit applications. Existing permits will be unaffected. However, the Proposed Rule does provide that any amendment application will be assessed against the regulations applicable at the time the application is filed.
FWS explains that the purpose of these revisions is to encourage greater participation in the permitting process and in voluntary conservation efforts. To that end, FWS requests comments on whether the changes will impact the conservation delivered through the permitting program. FWS also asks for public comment and data on the amount of privately held land that contains listed and non-listed species and that could potentially be permitted under this proposed rule. FWS will accept comments on the Proposed Rule until April 10.