[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Notices]
[Pages 32178-32183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15250]


      

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Part III





Department of the Interior





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Fish and Wildlife Service



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Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 13 and 17



Announcements: Draft Safe Harbor Policy and Candidate Conservation 
Agreements Draft Policy, Notices; and Safe Harbor and Candidate 
Conservation Agreements; Proposed Rule

  Federal Register / Vol. 62, No. 113 /  Thursday, June 12, 1997 /  
Notices  

[[Page 32178]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Announcement of Draft Safe Harbor Policy

AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries 
Service, NOAA, Commerce.

ACTION: Announcement of draft policy; request for public comments.

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SUMMARY: The Fish and Wildlife Service and the National Marine 
Fisheries Service (Services) announce a joint Draft Safe Harbor Policy 
under the Endangered Species Act of 1973, as amended (Act). 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. This policy would provide incentives 
for private and other non-Federal property owners to restore, enhance 
or maintain habitats for listed species. Either Service, or the 
Services jointly, will closely coordinate with the appropriate State 
agencies and any affected Native American Tribal governments before 
entering into Safe Harbor Agreements (Agreements). Under the policy, 
either Service, or the Services, jointly, would provide participating 
property owners with technical assistance in the development of 
Agreements and would provide assurances that additional land-use or 
resource-use restrictions as a result of their voluntary conservation 
actions to benefit covered species would not be imposed. If the 
Agreement provides a net conservation benefit to the covered species 
and the property owner meets all the terms of the Agreement, the 
Services would authorize the incidental taking of the covered species 
to enable the property owner to ultimately return the enrolled property 
back to agreed upon baseline conditions. The Services seek public 
comment on the draft policy. Additionally, the Fish and Wildlife 
Service (FWS) has published in today's Federal Register a proposed rule 
that contains the necessary regulatory changes to implement this 
policy. The Services also seek public comment on the appropriateness of 
allowing a property owner to enter into a Safe Harbor Agreement in 
conjunction with a Habitat Conservation Plan (HCP) under section 
10(a)(1)(B) of the Act.

DATES: Comments on the draft policy must be received by August 11, 
1997.

ADDRESSES: Send any comments or materials concerning the Draft Safe 
Harbor Policy to the Chief, Division of Endangered Species, U.S. Fish 
and Wildlife Service, 452 ARLSQ, Washington, D.C. 20240 (Telephone 703/
358-2171, Facsimile 703/358-1735) You may examine comments and 
materials received during normal business hours in room 452, Arlington 
Square Building, 4401 North Fairfax Drive, Arlington, Virginia. You 
must make an appointment to examine these materials.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Fish and 
Wildlife Service, Division of Endangered Species (Telephone (703)358-
2171) or Nancy Chu, National Marine Fisheries Service, Chief, 
Endangered Species Division (Telephone (301) 713-1401).

SUPPLEMENTARY INFORMATION:

Background

    Much of the nation's current and potential fish and wildlife 
habitat is on non-Federal property, owned by private citizens, States, 
municipalities, Native American 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). The long-term 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.
    Many property owners are willing to voluntarily manage their 
property to benefit listed fish and wildlife, provided that such 
actions do not result in new restrictions being placed on the future 
use of their property. Beneficial management could include actions to 
enhance, restore, or maintain habitat (e.g., restoring fire by 
prescribed burning, restoring hydrological conditions), so that it is 
suitable for listed species. Such proactive management actions cannot 
be mandated or required by the Act. Thus, failure to conduct habitat 
enhancement or restoration 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 about additional land-use or resource-use 
restrictions that may result if listed species colonize their property 
or increase in numbers or distribution because of their conservation 
efforts. Concern centers on the applicability of the Act's section 9 
``take'' prohibitions if listed species occupy their property and on 
future property-use restrictions that may result from their 
conservation-oriented property management actions. The potential for 
future land- or resource-use restrictions has led property owners to 
avoid or limit property management practices that could enhance or 
maintain habitat and benefit or attract fish and wildlife that are 
currently Federally listed as endangered or threatened.
    A fundamental purpose of section 2 of the Act, is to conserve the 
ecosystems upon which endangered and threatened species depend and to 
conserve listed 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 (50 CFR 17.3), as promulgated by the FWS, 
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.'' Regulations in 50 CFR 17.31 extend 
the prohibition against take to threatened fish and wildlife species. 
Consequently, property owners whose properties support endangered or 
threatened species could violate section 9 of the Act if the property 
owners significantly develop, modify, or manage those properties in a 
way that causes harm to listed species.
    The Services' draft Safe Harbor Policy encourages property owners 
to voluntarily conserve threatened and endangered species without the 
risk of further restrictions pursuant to section 9. 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 other provisions of the Act, the Services have determined that the 
section 10(a)(1)(A) ``enhancement of survival'' permit provisions of 
the Act provide the best mechanism to carry out the Safe Harbor Policy 
and provide the necessary assurances for participating property owners 
while also providing conservation benefits to the covered species. 
Assurances already provided by

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the FWS under sections 7 or 10(a)(1)(B) would still be valid, and 
revision of those proactive Agreements is unnecessary. The Services are 
developing this policy to provide national consistency in the 
development of Safe Harbor Agreements and link the policy to an 
expanded enhancement of survival permit program through section 
10(a)(1)(A) of the Act.
    The FWS's proposed regulatory changes necessary to implement this 
draft policy were published in today's Federal Register. The proposed 
rule provides the FWS's procedures to implement the Safe Harbor Policy 
as well as other changes to Parts 13 and 17. The National Marine 
Fisheries Service will develop and propose regulatory changes to 
implement this policy at a later date.

Draft Safe Harbor Policy

Part 1. Purpose

    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 willing to be partners in the conservation and recovery of 
fish, wildlife, and plant species and their habitats. However, property 
owners often are reluctant to undertake proactive activities that 
increase the likelihood or extent of use of their properties by 
endangered and threatened species, due to fear of future additional 
property-use restrictions. Safe Harbor Agreements are a means of 
providing an incentive to property owners to restore, enhance, or 
maintain habitats resulting in a net conservation benefit to endangered 
and threatened species. Although such Agreements may not permanently 
conserve such habitats, they nevertheless offer important short-term 
and mid-term conservation benefits. These net conservation benefits may 
result from reduction of 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.
    The purpose of the Safe Harbor 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, if these efforts attract listed 
species onto their properties, or areas affected by actions undertaken 
on their property, 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 Native 
American 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. Under a Safe Harbor Agreement, participating property owners 
would voluntarily undertake management activities on their property to 
enhance, restore, or maintain habitat to benefit Federally-listed 
species.
    Safe Harbor Agreements may be initiated by property owners, or, 
either Service or the Services jointly, may take the initiative on 
their own or in concert with other Federal or State agencies to 
encourage property owners to voluntarily enter Safe Harbor Agreements 
for a given area, particularly when many non-Federal parcels of 
property are involved. Either Service or the Services jointly, will 
work with the participating landowner in the development of their 
permit application and the Safe Harbor Agreement. The Services will 
provide the necessary technical assistance to the landowner in 
developing mutually agreeable management actions that the landowner is 
willing to voluntarily undertake or forgo that will provide a net 
conservation benefit and help the landowner describe how these 
activities will benefit covered species. Development of an acceptable 
permit application and an adequate Safe Harbor agreement is intricately 
linked. Either Service or the Services jointly will process the 
participating landowner's permit application following the Safe Harbor 
permitting process as described in Title 50 of the Code of Federal 
Regulations Part 17. During this process all parties to the Agreement 
will work in close coordination in the development of the Agreement to 
ensure that measures included in the agreement are consistent with the 
terms and conditions of the permit. Once the permit is issued the 
parties to the Agreement can finalize and sign the Agreement.
    The Services recognize that Safe Harbor Agreements are not 
appropriate under all circumstances. In particular, in situations when 
property owners are seeking immediate take authorization, 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 are also not appropriate in situations that do not meet the 
net conservation benefit standards of this policy. For example, where 
either Service or the Services jointly, 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 enjoys 
long-term protection to a habitat without such protection, the Services 
would not enter into the Agreement. As another example, where a species 
is so depleted or its habitat so degraded that some improvement over 
baseline conditions is necessary to result in a net conservation 
benefit, a Safe Harbor Agreement may not be appropriate. For instance, 
certain aquatic, riverine, and/or riparian species may present a 
challenge in reaching a net conservation benefit since returning to the 
baseline conditions could have serious negative effects and would 
negate or outweigh the benefits achieved through the Agreement. In 
these cases, if a net conservation benefit cannot be achieved after 
taking into consideration the return to the baseline conditions, the 
Services will not enter into a Safe Harbor Agreement unless the 
Services and the property owner agree to appropriate conditions that 
provide such a benefit.
    Availability of resources will also be a governing factor for the 
Services. The Services expect the interest in Safe Harbor Agreements to 
rise and the demand for technical assistance to property owners to 
increase. Safe Harbor Agreements are developed using limited funds 
appropriated for recovery activities. Priority will, therefore, be 
given to Agreements that provide the greatest contribution to the 
recovery of multiple listed species. Another governing 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 fill information gaps for species requirements 
that have not been adequately documented in the scientific literature.

Part 2. Definitions

    The following definitions apply for the purposes of this policy.
    ``Baseline conditions'' for covered species means population 
estimates and distribution (if available or determinable) and/or 
habitat

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characteristics of enrolled property that sustain seasonal or permanent 
use, at the time the Safe Harbor Agreement is executed between either 
Service or the Services jointly and the property owner.
    ``Covered species'' means a species that is the intended subject of 
a Safe Harbor Agreement. Covered species are limited to species that 
are Federally listed as endangered or threatened.
    ``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 or 
waters covered by a Safe Harbor Agreement to which safe harbor 
assurances 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 either Service or the Services 
jointly believe will benefit the status of the covered species.
    ``Net conservation benefit'' means the cumulative results of the 
management activities identified in an 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 the 
incidental taking allowed by the permit. Net conservation benefits must 
be sufficient to contribute to the recovery of the covered species if 
undertaken by other property owners similarly situated within the range 
of the covered species.
    ``Property owner'' includes, but is not limited to, private 
individuals, organizations, businesses, Native American Tribal 
governments, State and local governments, and other non-Federal 
entities.
    ``Safe Harbor Agreement'' means an Agreement signed by either 
Service, or both Services jointly and a property owner and any other 
cooperator, 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 
authorized in the enhancement of survival permit.
    ``Safe Harbor Assurances'' are assurances provided in the Agreement 
and authorized in the enhancement of survival permit for covered 
species, by either Service, or both jointly, to a non-Federal property 
owner. These assurances would allow the property owner to alter or 
modify enrolled property, even if such alteration or modification will 
result in the incidental take of a listed species that would return the 
species back to the originally agreed upon baseline conditions. Such 
assurances may apply to whole parcels, or portions thereof, of the 
property owner's property as designated in the Agreement. These 
assurances are dependent upon compliance with the property owners' 
obligations in the Agreement and in the enhancement of survival permit.

Part 3. Cooperation and Coordination With the States and Tribes

    Coordination with the appropriate State agencies and any affected 
Tribal governments is critical for the success of the Services' 
collaborative stewardship approach to recovery through these Safe 
Harbor Agreements, which is the underlying principle of the Safe Harbor 
Policy. Coordination among the State fish and wildlife agencies, Tribal 
governments, the Services, and the property owners are key to 
effectively implementing a successful Safe Harbor Agreement. This 
coordination allows the special local knowledge of all appropriately 
affected entities to be considered in the Agreements. The Services will 
work in close partnership 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 which has a treaty right to 
any fish or wildlife resources covered by a Safe Harbor Agreement.

Part 4. Species Net Benefit From Safe Harbor Agreements

    Before entering into any Safe Harbor Agreement, either Service, or 
the Services jointly, 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 
must contribute to the recovery of the covered species. Although a Safe 
Harbor Agreement does not have to provide permanent conservation for 
enrolled property, Agreements must nevertheless be of sufficient design 
and duration to provide a net conservation benefit to all covered 
listed species.
    Conservation benefits from Safe Harbor Agreements may include 
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.
    The Services believe that there are many listed species that will 
benefit from management actions carried out for the duration of Safe 
Harbor Agreements even if there is a return to baseline conditions. 
Returning the habitat or population numbers to the baseline conditions 
must be possible without negating the net conservation benefit provided 
by the Agreement. If this net conservation benefit standard cannot be 
met, then the Services will not enter into the Agreement. For example, 
where the Services 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 enjoys long-term protection 
to a habitat without such protection, the Services would not enter into 
the Agreement. Aquatic, riverine, and/or riparian species may present 
an additional challenge in reaching a net conservation benefit since 
returning to the baseline conditions could have a serious negative 
effect and would negate or outweigh the benefits achieved through the 
Agreement. In these cases, if a net conservation benefit cannot be 
achieved, and still allow for the return to the baseline conditions, 
the Services will not enter into a Safe Harbor Agreement.

Part 5. Standards for and Development of a Safe Harbor Agreement and 
Permit Issuance Under Section 10(a)(1)(A) of the Act

    A property owner may obtain a permit to incidentally take a listed 
species of fish and wildlife 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 and identify the enrolled 
property covered by the Agreement;

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    (2) Describe the agreed upon baseline conditions for each of the 
covered species within the enrolled property;
    (3) Identify management actions that would accomplish the expected 
net conservation benefits to the species and the agreed upon timeframes 
for these management actions to remain in effect in order to achieve 
the anticipated net conservation benefits;
    (4) Describe the anticipated results of the management actions and 
any incidental take associated with the management actions;
    (5) Incorporate a notification requirement, where appropriate and 
feasible, to provide either Service, or Services jointly, or 
appropriate State agencies with a reasonable opportunity to rescue 
individual specimens of a covered species before any authorized 
incidental taking occurs;
    (6) Describe the nature of the expected incidental take upon 
termination of the Agreement (i.e., back to baseline conditions);
    (7) Satisfy other requirements of section 10 of the Act; and
    (8) Identify the responsible parties that will monitor maintenance 
of baseline conditions, implementation of terms and conditions of the 
Agreement, and any incidental take as authorized in the permit.
    Issuance of a Safe Harbor permit by the Services is subject to 
consultation under the intra-Service consultation provisions of section 
7 of the Act.

Part 6. Baseline Conditions

    Either Service, or the Services jointly, the property owner, and 
any other cooperator(s) must accurately describe the baseline 
conditions for the property and species covered by the Safe Harbor 
Agreement to ensure that the Agreement will not reduce current 
protection for covered species that presently may use the enrolled 
property, or result in additional restrictions for such species beyond 
the baseline conditions. The baseline conditions must reflect the known 
biological and habitat characteristics that are necessary to support 
existing levels of use of the property by species covered in the 
Agreement. However, in light of 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) Determining the Baseline Conditions
    This Policy requires a full description of baseline conditions for 
any species covered in an Agreement (see Part 5 above). Either Service 
or the Services jointly, or appropriate State or Tribal agencies, 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 available or determinable; necessary habitat characteristics that 
support the species covered by 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 level of occupation (permanent or seasonal) by covered 
species on the enrolled property. For species that are extremely 
difficult to survey and quantify, an estimate or an indirect measure 
(e.g., number of suitable acres of habitat needed to sustain a member 
of the species) is acceptable. Either Service or the Services jointly, 
will develop the estimate following a protocol agreed upon by all 
parties to the Agreement. Baseline conditions are then set, based upon 
the agreed upon measurements or estimates. Either Service or the 
Services jointly, the property owner or the property owner and any 
other appropriate agency or government acting in cooperation with 
either Service or the Services jointly, may determine the baseline 
conditions. When either Service does not directly determine the 
baseline conditions, they must review and concur with the determination 
before entering into an Agreement. Formulation of baseline conditions 
can incorporate information provided by the property owner, any other 
appropriate agency, or species experts, as appropriate.
(B) Plants
    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 usually not necessary for listed 
plant species. However, the Services strongly encourage and often enter 
into Agreements with non-Federal property owners to restore and enhance 
habitats for listed plants.
    Either Service or the Services jointly, must review the effects of 
their own actions (e.g., issuance of a permit) on listed plants, even 
when those plants are found on private property under section 7 of the 
Act. In approving an enhancement of survival permit and entering into a 
Safe Harbor Agreement, either Service or the Services jointly, must 
also confirm under section 7 that the Agreement will not ``jeopardize 
the continued existence'' of listed plants. In the interest of 
conserving listed plants and complying with their responsibilities 
under section 7, either Service or the Services jointly, may negotiate 
with the property owner to voluntarily assist the Services in restoring 
or enhancing listed plant habitats present within the enrolled 
property.
(C) Future Section 7 Considerations and Assurances
    Before entering into a Safe Harbor Agreement, the either Service or 
the Services jointly, must conduct an intra-Service section 7 review. 
During that process, either Service or the Services jointly, must 
determine that future property use changes within the enrolled property 
and incidental take consistent with the established baseline conditions 
will neither jeopardize listed species of fish and wildlife or plants, 
nor destroy or adversely modify critical habitat at the time of signing 
the Agreement. If a future Federal nexus to the enrolled property 
prompts the need for a section 7 review and take of the listed species 
above the baseline conditions is likely, either Service or the Services 
jointly, will issue a non-jeopardy biological opinion and incidental 
take statement to the Federal action agency. As required by section 7 
and its implementing regulations, either Service or the Services 
jointly, will also provide the Federal agency with reasonable and 
prudent measures that are necessary or appropriate to minimize the 
effects of the action. Those measures will only require implementation 
of the same terms and conditions provided to the participating 
landowner in his/her Safe Harbor Agreement and associated 10(a)(1)(a) 
permit. This approach is warranted and consistent with section 7 
consultation procedures because the effects of any incidental take 
consistent with the established baseline conditions would have been 
previously considered during the Services' intra-agency section 7 
review for the proposed Agreement.

Part 7. Assurances to Property Owners

    A property owner who enters an Agreement and wishes to return 
enrolled property to the baseline conditions would need to show 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

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Agreement conditions, the property owner would be authorized to utilize 
his/her property in a manner which returns the enrolled property to 
baseline conditions.

Part 8. Occupation by Non-Covered or Newly Listed Species

    After an Agreement is signed and an enhancement of survival permit 
is issued, a species not addressed in the Agreement may occupy enrolled 
property. If either Service or the Services jointly, conclude that the 
species is present as a direct result of the property owner's 
conservation actions taken under the Agreement, either Service or the 
Services, will:
    (1) At the request of the property owner, amend the Agreement to 
reflect the changed circumstances and revise the baseline condition 
description, as appropriate; and
    (2) Review and revise the permit, as applicable, to address the 
presence of additional listed species on enrolled property.
    Assurances in the permit may not necessarily be extended to a non-
covered species if the species was specifically excluded from the 
original Agreement as a result of the participating property owner's 
request, or its presence is a result of activities not directly 
attributable to the property owner. In these cases, enhancement or 
maintenance actions that are specific to the non-covered species under 
consideration must be developed, and baseline conditions determined 
that will provide a net conservation benefit to that species.
    Any substantial change to a Safe Harbor Agreement or a revision to 
an enhancement of survival permit because of non-covered species would 
be subject to the same review process (i.e., section 7 of the Act or 
public review) as the original Safe Harbor agreement and enhancement of 
survival permit.

Part 9. National Environmental Policy Act Compliance

    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 utilize 
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.
    Either Service or the Services jointly, will review each permit 
action for other significant environmental, economic, social, 
historical or cultural impact, or for significant controversy (516 DM 
2, Appendix 2 for FWS and NOAA's Environmental Review Procedures and 
NOAA Administrative Order Series 216-6). If either Service or the 
Services jointly, expect that significant impact could occur, the 
issuance of a permit would require preparation of an EA or EIS. 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/permit is not expected to individually or cumulatively 
have a significant impact on the quality of the human environment, then 
the Agreement/permit may be categorically excluded.

Part 10. Transfer of Ownership

    If a property owner who is party to a Safe Harbor Agreement 
transfers ownership of the enrolled property, either Service or 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. Actions taken by the new participating property 
owner that result in the incidental take of species covered by the 
Agreement would be authorized if the new property owner maintains the 
baseline conditions. The new property owner, however, would neither 
incur responsibilities under the Agreement nor receive any assurances 
relative to section 9 restrictions from the Agreement unless the new 
property owner becomes a party to the Agreement.
    A Safe Harbor Agreement must commit the participating property 
owner to notify the Services of any transfer of ownership at the time 
of the transfer 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 would like to continue the original Agreement or enter a new 
Agreement. When a new property owner continues an existing Safe Harbor 
Agreement, either Service or the Services jointly, will honor the 
baseline conditions for the enrolled property under consideration.

Part 11. Property Owner Discretion

    Nothing in this policy prevents a participating property owner from 
implementing management actions not described in the Agreement, so long 
as such actions maintain the baseline conditions. Either Service or the 
Services jointly, will provide technical advice, to the maximum extent 
practicable, to the property owner when requested.

Part 12. Discretion of All Parties

    Nothing in this policy compels any party to enter a Safe Harbor 
Agreement at any time. Entering a Safe Harbor Agreement is voluntary 
and presumes that the Agreement will serve the interests of all 
affected parties. Unless specifically noted, an Agreement does not 
otherwise create or waive any legal rights of any party to the 
Agreement.

Part 13. Scope of Policy

    This policy applies to all federally-listed species of fish and 
wildlife administered by either Service or the Services jointly, as 
provided in the Act and its implementing regulations.

Required Determinations

    A major purpose of this proposed policy is the facilitation of 
voluntary cooperative programs for the proactive management of non-
Federal lands and waters for the benefit of listed species. From the 
Federal Government's perspective, implementation of this policy would 
result in minor expenditures (e.g., providing technical assistance in 
the development of site-specific management plans). The benefits 
derived from such management actions on non-Federal lands and waters 
would significantly advance the recovery of listed species. Non-Federal 
program participants would be provided regulatory certainty as a result 
of their voluntary management actions. In some cases, such participants 
may incur minor expenditures to carry out some management actions on 
their lands or involving their water. The Services have determined that 
the proposed policy would not result in significant costs of 
implementation to the Federal Government or to non-Federal program 
participants.
    The Director of the Fish and Wildlife Service certified to the 
Chief Counsel for Advocacy of the Small Business Administration that a 
review under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.) has revealed that this policy would not have a significant effect 
on a substantial number of small

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entities, which includes businesses, organizations, or governmental 
jurisdictions. Because of the completely voluntary nature of the Safe 
Harbor program, no significant effects are expected on non-Federal 
cooperators exercising their option to enter into a Safe Harbor 
Agreement. Therefore, this policy would have minimal effect on such 
entities.
    This policy has been determined to be not significant for purposes 
of Executive Order 12866. Therefore, it was not subject to review by 
the Office of Management and Budget.
    The Services have determined and certify pursuant to the Unfunded 
Mandates Act, 2 U.S.C. 1502 et seq., that this proposed policy will not 
impose a cost of $100 million or more in any given year on local or 
State governments or private entities. The Departments have determined 
that these proposed policy meets the applicable standards provided in 
sections 3(a) and 3(b)(2) of Executive Order 12988.
    The Services have examined this proposed policy under the Paperwork 
Reduction Act of 1995 and found it to contain no requests for 
additional information or increase in the collection requirement other 
than those already approved under the Paperwork Reduction Act of 1995 
for incidental take permits with OMB approval #1018-0022 which expires 
July 31, 1997. The Service requested renewal of the OMB approval and in 
accordance with 5 CFR 1320 will not continue to collect the 
information, if the approval has expired, until OMB approval has been 
obtained.
    The Department has determined that the issuance of the proposed 
policy is categorically excluded under the Department of Interior's 
NEPA procedures in 516 DM 2, Appendix 1.10. NMFS concurs with the 
Department of Interior's determination that the issuance of the 
proposed policy qualifies for a categorical exclusion and falls within 
the categorical exclusion criteria in NOAA 216-3 Administrative Order, 
Environmental Review Procedure.

Public Comments Solicited

    The Services request comments on their Draft Safe Harbor Policy. 
Particularly sought are comments on the procedures or methods for 
enhancing the utility of the Safe Harbor Policy in carrying out the 
purposes of the Act.
    The Services also are interested in the views of interested parties 
on the appropriateness of linking ``Safe Harbor'' Agreements to 
incidental take permits issued under section 10(a)(1)(B) of the Act. In 
certain situations, HCP permittees might be willing to conduct 
activities that would enhance listed species populations above their 
mitigation obligations under an incidental take permit or HCP. The 
Services are interested in ideas, comments, and suggestions on this 
concept. The Services also are requesting ideas, comments or 
suggestions on how to delineate the baseline conditions for a Safe 
Harbor Agreement that is linked to an HCP incidental take permit. After 
consideration of all comments received on this question, the Services 
will decide whether it is appropriate to utilize Safe Harbor Agreements 
in connection with HCPs.
    If the Services decide that it is appropriate to provide these 
assurances to incidental take permittees, the Services will publish a 
proposed policy on how best to provide such assurances.
    In addition, situations may arise where a property owner may want 
to recover or conserve numerous species, both listed and unlisted on 
their property, and may want to enter into both a Safe Harbor Agreement 
and a Candidate Conservation Agreement. The Services are also seeking 
comments, and are interested in ideas and suggestions on the ways to 
streamline and combine these processes when developing these two types 
of agreements with the same property owner.
    The Services will take into consideration the comments and any 
additional information received by the Services by August 11, 1997. To 
ease review and consideration of submitted comments, the Services 
prefer that reviewers organize their comments by part (e.g., Part 1. 
Purpose, Part 2. Definitions, and linking Safe Harbor Agreements with 
HCP permits).

    Dated: May 27, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.

    Dated: June 2, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Oceanic and Atmospheric 
Administration.
[FR Doc. 97-15250 Filed 6-9-97; 1:26 pm]
BILLING CODE 4310-55-P