[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Rules and Regulations]
[Pages 8859-8873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4367]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
50 CFR Part 222
[Docket No. 980212035-8035-01]
RIN 1018-AE24
Habitat Conservation Plan Assurances (``No Surprises'') Rule
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Final rule.
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DATES: This rule is effective March 25, 1998.
SUMMARY: This final rule codifies the Habitat Conservation Plan
assurances provided through section 10(a)(1)(B) permits issued under
the Endangered Species Act (ESA) of 1973, as amended. Such assurances
were first provided through the ``No Surprises'' policy issued in 1994
by the Fish and Wildlife Service (FWS) and the National Marine
Fisheries Service (NMFS), (jointly referred to as the ``Services,'')
and included in the joint FWS and NMFS Endangered Species Habitat
Conservation Planning Handbook issued on December 2, 1996 (61 FR
63854). The No Surprises policy announced in 1994 provides regulatory
assurances to the holder of a Habitat Conservation Plan (HCP)
incidental take permit issued under section 10(a) of the ESA that no
additional land use restrictions or financial compensation will be
required of the permit holder with respect to species covered by the
permit, even if unforeseen circumstances arise after the permit is
issued indicating that additional mitigation is needed for a given
species covered by a permit. The Services issued a proposed rule on May
29, 1997 (62 FR 29091) and the comments received on that proposal have
been evaluated and considered in the development of this final rule.
This final rule contains revisions to parts 17 (FWS) and 222 (NMFS) of
Title 50 of the Code of Federal Regulations necessary to implement the
Habitat Conservation Plan assurances.
ADDRESSES: To obtain copies of the final rule or for further
information, contact Chief, Division of Endangered Species, U.S. Fish
and Wildlife Service, Washington, D.C., 20240; or Chief, Endangered
Species Division, National Marine Fisheries Service, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD, 20910.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, (Telephone 703/358-
2171, or Facsimile 703/358-1735), or Nancy Chu, Chief, Endangered
Species Division, National Marine Fisheries Service (Telephone (301/
713-1401, or 301/713-0376).
SUPPLEMENTARY INFORMATION: These final regulations and the background
information regarding the final rule apply to both Services. The
proposed rule has been revised based on the comments received. The
final rule is presented in two parts because the Services have separate
regulations for implementing the section 10 permit process. The first
part is for the final changes in the FWS's regulations found at 50 CFR
17.22 and 17.32, and the second part is for the final changes in NMFS's
regulations found at 50 CFR 222.22.
Background
Section 9 of the ESA generally prohibits the ``take'' of species
listed under the ESA as endangered. Pursuant to the broad grant of
regulatory authority over threatened species in section 4(d) of the
ESA, the Services' regulations generally prohibit take of species
listed as threatened. See, e.g., 50 CFR 17.31 and 17.21 (FWS). Section
3(18) of the ESA defines ``take'' to mean ``to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.'' FWS regulations (50 CFR 17.3) 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 or
sheltering.''
Section 10 of the ESA, as originally enacted in 1973, contained
provisions allowing the issuance of permits authorizing the taking of
listed species under very limited circumstances for non-Federal
entities. In the following years, both the Federal government and non-
Federal landowners became concerned that these permitting provisions
were not sufficiently flexible to address situations in which a
property owner's otherwise lawful activities might result in limited
incidental take of a listed species, even if the landowner were willing
to plan activities carefully to be consistent with the conservation of
the species. As a result, Congress included in the ESA Amendments of
1982 provisions under section 10(a) to allow the Services to issue
permits authorizing the incidental take of listed species in the course
of otherwise lawful activities, provided that those activities were
conducted according to an approved conservation plan (habitat
conservation plan or HCP) and the issuance of the HCP permit would not
jeopardize the continued existence of the species. In doing so,
Congress indicated it was acting to ``* * * address the concerns of
private landowners who are faced with having otherwise lawful actions
not requiring Federal permits prevented by section 9 prohibitions
against taking * * * `` H.R. Rep. No. 835, 97th Cong., 2d Sess. 29
(1982) (hereafter ``Conf. Report'').
Congress modeled the 1982 section 10 amendments after the
conservation plan developed by private landowners and local governments
to protect the habitat of two listed butterflies on San Bruno Mountain
in San Mateo County, California while allowing development activities
to proceed. Congress recognized in enacting the section 10 HCP
amendments that:
`` * * * significant development projects often take many years
to complete and permit applicants may need long-term permits. In
this situation, and in order to provide sufficient incentives for
the private sector to
[[Page 8860]]
participate in the development of such long-term conservation plans,
plans which may involve the expenditure of hundreds of thousands if
not millions of dollars, adequate assurances must be made to the
financial and development communities that a section 10(a) permit
can be made available for the life of the project. Thus, the
Secretary should have the discretion to issue section 10(a) permits
that run for periods significantly longer than are commonly provided
[for other types of permits].'' (Conf. Report at 31).
Congress also recognized that long-term HCP permits would present
unique issues that would have to be addressed if the permits were to
function to protect the interests of both the species involved and the
non-Federal community. For instance, Congress realized that ``* * *
circumstances and information may change over time and that the
original [habitat conservation] plan might need to be revised. To
address this situation, the Committee expects that any plan approved
for a long-term permit will contain a procedure by which the parties
will deal with unforeseen circumstances.'' (Conf. Report at 31).
Congress also recognized that non-Federal property owners seeking HCP
permits would need to have economic and regulatory certainty regarding
the overall cost of species mitigation over the life of the permit. As
stated in the Conference Report on the 1982 ESA amendments:
``The Committee intends that the Secretary may utilize this
provision to approve conservation plans which provide long-term
commitments regarding the conservation of listed as well as unlisted
species and long-term assurances to the proponent of the
conservation plan that the terms of the plan will be adhered to and
that further mitigation requirements will only be imposed in
accordance with the terms of the plan. In the event that an unlisted
species addressed in the approved conservation plan is subsequently
listed pursuant to the Act, no further mitigation requirements
should be imposed if the conservation plan addressed the
conservation of the species and its habitat as if the species were
listed pursuant to the Act.'' (Conf. Report at 30 and 50 FR 39681-
39691, Sept. 30. 1985).
Congress thus envisioned and allowed the Federal government to
provide regulatory assurances to non-Federal property owners through
the section 10 incidental take permit process. Congress recognized that
conservation plans could provide early protection for many unlisted
species and, ideally, prevent subsequent declines and, in some cases,
the need to list covered species.
The Services decided that a clearer policy regarding the assurances
provided to landowners entering into an HCP was needed. This need
prompted the development of the No Surprises policy, which was based on
the 1982 Congressional Report language and a decade of working with
private landowners during the development and implementation of HCPs.
The Services believed that non-Federal property owners should be
provided economic and regulatory certainty regarding the overall cost
of species conservation and mitigation, provided that the affected
species were adequately covered by a properly functioning HCP, and the
permittee was properly implementing the HCP and complying with the
terms and conditions of the HCP permit in good faith. A driving concern
during the development of the policy was the absence of adequate
incentives for non-Federal landowners to factor endangered species
conservation into their day-to-day land management activities.
The Services issued the ESA No Surprises policy in August of 1994.
This policy was then included in the joint Endangered Species Habitat
Conservation Planning Handbook, which was published in draft form for
public review and comment on December 21, 1994 (59 FR 65782), and,
after consideration of the comments, was issued as final in December
1996 (61 FR 63854). In addition to that opportunity for public comment
on the No Surprises policy in general, the application of the policy
and its assurances have been and continue to be subject to an
opportunity for public comment on each proposed HCP permit under
section 10(c) of the ESA on a case-by-case basis. The Services were
subsequently sued in Spirit of the Sage Council v. Babbitt, No.
1:96CV02503 (SS) (D. D.C.), which challenged the procedures under which
the No Surprises policy was adopted and under which subsequent HCP
permits were issued. In settling this lawsuit, the Services agreed to
submit the No Surprises Policy to further public comment and to
consider public comment in deciding whether to adopt the No Surprises
policy as a final regulation. The Services agreed to this approach
because they recognized the benefits of permanently codifying the No
Surprises policy as a rule in 50 CFR, as well as the value of
soliciting additional comments on the policy itself.
Summary of the Proposed Rule
The proposed rule stated that the Services, when negotiating
unforeseen circumstances provisions for HCPs, would not require the
commitment of additional land, property interests, or financial
compensation beyond the level of mitigation that was otherwise
adequately provided for a species under the terms of a properly
functioning conservation plan. Moreover, the Services would not seek
any other form of additional mitigation from a permittee except under
unforeseen circumstances. However, if additional mitigation measures
were subsequently deemed necessary to provide for the conservation of a
species that was otherwise adequately covered under the terms of a
properly functioning conservation plan, the obligation for such
measures would not rest with the permittee.
Under the proposed rule, if unforeseen circumstances warrant
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation would, to the maximum
extent possible, be consistent with the original terms of the
conservation plan. Further, any such changes will be limited to
modifications within conserved habitat areas, if any, or to the
conservation plan's operating conservation program for the affected
species. Additional mitigation requirements would not involve the
payment of additional compensation or apply to parcels of land or the
natural resources available for development under the original terms of
the conservation plan without the consent of the permittee.
Criteria were also developed by the Services that must be used for
determining whether and when unforeseen circumstances arise.
Under the proposed rule, the Services also would not seek any form
of additional mitigation for a species from a permittee where the terms
of a properly functioning conservation plan were designed to provide an
overall net benefit for that species and contained measurable criteria
for the biological success of the conservation plans which have been or
are being met. Nothing in the proposed rule would limit or constrain
the Services, or any other governmental agency, from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
The Services also proposed a permit-shield provision in the
proposed rule that stated that compliance with the terms of an
incidental take permit constitutes compliance with the requirements of
sections 9 and 10 of the ESA with respect to the species covered by the
permit regardless of changes in circumstances, policy, and regulation,
unless a change in statute or court order specifically requires that
assurances given in the original permit be modified or withdrawn.
[[Page 8861]]
The Services also clarified in the proposed rule that the
regulatory and economic assurances provided to HCP permittees are
limited to section 10(a)(1)(B) permits. In addition, the assurances are
not provided to Federal agencies.
Summary of Comments Received
The Services received more than 800 comments on the proposed rule
from a large variety of entities, including Federal, State, County, and
Tribal agencies, industry, conservation groups, religious groups,
coalitions, and private individuals. The Services considered all of the
information and recommendations received from all interested parties on
the proposed regulation during the public comment period and
appreciated the comments received on the proposed rule. In addition to
comments that specifically addressed the proposed No Surprises policy
in the proposed rule, the Services received numerous additional
comments on the HCP process itself, comments which were beyond the
narrow scope of this particular rulemaking on the No Surprises policy.
The Services will utilize these more generic comments on HCPs, as
appropriate, as we continue to improve the implementation of our HCP
programs. However, at this time, the Services will only address
comments received that are specific to the proposed No Surprises rule.
The Services have made changes in the proposed rule where
appropriate. In addition, the Services intend to revise the HCP
Handbook, both to reflect the final No Surprises rule and to further
enhance the effectiveness of the HCP process in general through
expanded use of adaptive management, monitoring provisions, and the
establishment of overall biological goals for HCPs.
The following is a summary of the comments on the proposed
regulations, and the Services' response.
Issue 1: Many commenters believed that to provide regulatory No
Surprises assurances, the Secretary was directed to ``* * * consider
the extent to which the conservation plan is likely to enhance the
habitat of the listed species or increase the long-term survivability
of the species or its ecosystem * * *'' (Conf. Report at 31.) and that
the Services have no legislative authority to provide regulatory
assurances for HCPs that do not meet this standard.
Response 1: A proposed HCP must satisfy the specific issuance
criteria enumerated in section 10(a)(2)(B) of the ESA. In deciding
whether these criteria have been satisfied and whether the permit
should be issued for a given species, the Services consider, among
other things, the extent to which the habitat of the affected species
or its long-term survivability may be improved or enhanced. While it
may be appropriate to consider an ``enhancement factor'' for an HCP, it
is not a mandatory section 10(a)(2)(B) issuance criterion for all
species.
Each HCP is analyzed on a case-by-case basis, using the best
scientific information available. Habitat conditions are part of the
data the Services evaluate to determine whether a proposed HCP meets
the section 10 issuance criteria. The legislative history of the 1982
amendments to section 10 of the ESA indicates that Congress viewed
habitat improvement and species conservation as appropriate
considerations in determining whether to issue long-term incidental
take permits. Certain types of HCPs, such as forest HCPs that include
aquatic species, often allow for significant timber harvest and
consequent species impacts during the initial years, while it may take
decades before the riparian measures under the plan produce stream
conditions that provide essential habitat functions for the listed
species. The Services agree that, in appropriate situations, the
legislative history supports including measures to provide for improved
habitat over the life of the plan in section 10 permits. Severely
depleted species and species for which the HCP covers all or a
significant portion of the range are examples of circumstances in which
essential habitat functions must be addressed to ensure that the
conservation measures in the HCP provide a high probability that the
habitat functions essential to the species' long-term survival will be
achieved and maintained during the term of the permit.
Issue 2: Many commenters felt that this proposed regulation was
driven solely by the needs of private landowners, and is not in the
best interests of the species or other public concerns. Many commenters
noted that the proposed regulation did not have commensurate
certainties for protection of biological resources.
Response 2: The section 10(a) HCP provisions of the ESA were
designed to help alleviate section 9 ``take'' liability for species on
non-Federal lands. The ESA, as originally enacted, allowed the taking
of listed species only under very limited circumstances, and did not,
for example, allow the incidental take of listed species in the course
of otherwise lawful activities. The 1982 ESA amendments to section
10(a) authorize the Services to issue HCP permits allowing the
incidental take of listed species in the course of otherwise lawful
activities, provided the activities are conducted according to an
approved habitat conservation plan that minimize and mitigate take and
avoids jeopardy to the continued existence of the affected species.
The Services disagree that the No Surprises policy has a narrow
focus that excludes the consideration of listed species conservation.
To the contrary, a driving concern in the development of the policy was
the absence of adequate incentives for non-Federal landowners to factor
endangered species conservation into their day-to-day land management
activities. The Services knew that much of the habitat of listed
species is in non-Federal lands and believed that HCPs should play a
major role in protecting this habitat. Yet, while thousands of acres of
species habitat were disappearing each year, only a handful of HCPs had
been sought and approved since 1982. The No Surprises policy was
designed to rechannel this uncontrolled ongoing habitat loss through
the regulatory structure of section 10(a)(1)(B) by offering regulatory
certainty to non-Federal landowners in exchange for a long-term
commitment to species conservation. Given the significant increase in
landowner interest in HCPs since the development of the No Surprises
policy, the Services believe that the policy has accomplished one of
its primary objectives--to act as a catalyst for integrating endangered
species conservation into day-to-day management operations on non-
Federal lands. The Services also believe that the HCP process, which is
a mechanism that reconciles economic development and the conservation
of listed species, is good for rare and declining species, and
encourages the development of more of these plans. If species are to
survive and recover, such plans are necessary because more than half of
the species listed have 80 percent of their habitat on non-Federal
lands.
Issue 3: Many commenters stressed that the proposed regulation
would unlawfully allow the Services to avoid their mandatory duties
under section 7 of the ESA. They argued that the proposed regulation
precludes the Services from meeting the regulatory and statutory
requirements under 50 CFR 402.16 and section 7(d) because it makes
reinitiation of consultation useless and precludes any meaningful
reexamination of mitigation measures if the measures in the HCP are
later found to be inadequate to avoid jeopardy as required under
section 7(a)(2). If jeopardy did arise, commenters do not
[[Page 8862]]
feel that the Services would be able to implement the necessary
mitigation to avoid the jeopardy because of lack of funding. Other
concerns were also raised by commenters regarding the respective
balance of responsibilities among the participants to an HCP containing
a No Surprises assurance. Also, some commenters suggested the Services
would not be fulfilling their mandatory conservation obligations under
section 7(a)(1).
Response 3: The Services are committed to meeting their
responsibilities under section 7(a)(2) of the ESA. As required by law,
the Services conduct a formal intra-Service section 7 consultation
regarding the issuance of each permit issued under section 10(a)(1)(B).
The purpose of any consultation is to insure that any action
authorized, funded, or carried out by the Federal government, including
the issuance of an HCP permit, is not likely to jeopardize the
continued existence of any listed species or result in the destruction
or adverse modification of critical habitat of such species. In
addition, the Services encourage all applicants to maximize benefits to
species covered by their HCPs because of the Services' responsibilities
under 7(a)(1). Moreover, as discussed in Response #1, in appropriate
situations, such as when an HCP covers most or the entire range of a
species or covers severely depleted species, the Services will seek
measures necessary for the long-term survival of the species and its
habitat.
The Services do not believe they are disregarding the requirements
of section 7(d) in providing assurances to landowners through the
section 10 process. During the formal section 7(a)(2) consultation
process, and prior to the issuance of a final biological opinion, the
Services (like any other Federal action agency) must not make any
irreversible or irretrievable commitments of resources (in the case of
proposing to issue an HCP permit, the Services cannot authorize
incidental take) that would preclude the development of reasonable and
prudent alternatives in the event that the action, as proposed,
violates section 7(a)(2) of the ESA. In the context of HCP permit
procedures, the only manner in which the Services could violate section
7(d) is if they authorized incidental take prior to making a final
decision on a permit application, which is never the case.
In addition, the No Surprises assurances do not make reinitiation
of consultation useless or preclude any meaningful reexamination of the
HCP's operating conservation program. The Services will not require the
landowner to provide additional mitigation measures in the form of
additional land, water, or money. However, additional mitigation
measures can be provided by another entity. Similarly, the No Surprises
rule does not preclude the Services from shifting emphasis within an
HCP's operating conservation program from one strategy to another in an
effort to enhance an HCP's overall effectiveness, provided that such a
shift does not increase the HCP permittee's costs. For example, if an
HCP's operating conservation program originally included a mixture of
predator depredation control and captive breeding, but subsequent
research or information demonstrated that one of these was considerably
more effective than the other, the Services would be able to request an
adjustment in the proportionate use of these tools, provided that such
an adjustment did not increase the overall costs to the HCP permittee.
Moreover, if the Services reinitiate consultation on the permitting
action, and if additional measures are needed, the Services will work
together with other Federal, State, and local agencies, Tribal
governments, conservation groups, and private entities to ensure
additional measures are implemented to conserve the species.
Regarding the concerns on the respective balance of
responsibilities among the participants to an HCP containing a No
Surprises assurance, the Services believe the No Surprises rule places
the preponderance of the responsibility for protection beyond the terms
of a specific HCP upon the Services. The only impediments to the
Services' assumption of this additional responsibility will arise from
limits on authority or funding to provide this additional protection.
The Services have significant resources and authorities that can be
utilized to provide additional protection for threatened or endangered
species that are the subject of a given HCP including land acquisition
or exchange, habitat restoration or enhancement, translocation, and
other management techniques. For example, lands managed by the
Department of the Interior could be used to ensure listed species
protection. Moreover, subsequent section 7 consultations and approval
of subsequent section 10 permits will have to take into account the HCP
and the status of the species at that time. The section 9 prohibition
against unauthorized take by other landowners provides additional
protection.
In addition, section 5 of the ESA authorizes the Services to
acquire lands to conserve endangered and threatened fish, wildlife, and
plants, and section 6 of the ESA authorizes the Services to cooperate
with the States in conserving listed species. While many of these
programs and authorities are subject to the availability of
appropriations, others, such as the authority under the Federal Land
Policy and Management Act to exchange land for conservation purposes,
do not require appropriations. These authorities provide additional
flexibility through which the Services could meet their section 7
responsibilities. While by no means exhaustive, the above discussion
demonstrates the depth of authorities and resources available to the
Services to meet their No Surprises commitments.
Utilizing these authorities and resources, the Services should be
able to provide additional species protection that may be required in
the unexpected event that an HCP falls short of providing sufficient
protection.
Issue 4: Many commenters stated that the proposed regulation
violates section 4(b)(8) of the ESA, which requires ``* * * the
publication in the Federal Register of any proposed or final regulation
which is necessary or appropriate to carry out the purposes of this ESA
shall include a summary by the Secretary of the data on which such
regulation is based and shall show the relationship of such data to
such regulation * * *''.
Response 4: The Services believe section 4(b)(8) is intended to
apply only to listing and critical habitat decisions under section 4.
However, even if section 4(b)(8) did apply to this rule, the Services
have complied with its requirements. The proposed rule contained a
thorough discussion of the basis for the proposed rule (62 FR 29091,
May 29, 1997). In addition, the Services had previously explained the
background of the No Surprises Policy in the draft HCP Handbook, which
was published for public comment in the Federal Register (59 FR 65782,
December 21, 1994).
Issue 5: Many commenters believe that the Secretary of the Interior
does not have the authority to issue assurances for species covered by
the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle
Protection Act (BGEPA).
Response 5: The FWS believes that the ESA is more restrictive and
protective of species than the MBTA and the BGEPA, and that species
covered under an HCP that are also covered by the MBTA and the BGEPA
will adequately be protected as long as the HCP is properly
implemented. The FWS has concluded that under certain
[[Page 8863]]
conditions, a section 10 permit allowing incidental take of listed
migratory birds is sufficient to relieve the permittee from liability
under the MBTA and BGEPA for taking those species. For the MBTA, this
is accomplished by having the HCP permit double as a Special Purpose
Permit authorized under 50 CFR 21.27. For the BGEPA, the FWS would
exercise its prosecutorial discretion not to prosecute an incidental
take permittee under the BGEPA if such take is in compliance with a
section 10 permit under the ESA.
However, there are conditions that must be satisfied before either
of these protections apply, which are explained on pages 3-40 to 3-41
in the joint Endangered Species Habitat Conservation Planning Handbook
(61 FR 63854, December 2, 1996). The FWS believes this approach is
warranted because the permittee already would have agreed to an
operating conservation program designed to conserve the species and
minimize and mitigate the impacts of take of the listed species of
migratory birds to the maximum extent practicable. Through the
permitting provisions of the MBTA and the FWS's discretion in the
enforcement of the BGEPA and the ESA, the FWS has the authority to
provide a permittee with assurance that they will not be prosecuted
under the MBTA or BGEPA for take expressly allowed under the ESA.
Issue 6: Many commenters stated that HCPs with No Surprises
assurances are in conflict with the issuance criteria in the ESA
because, in the event of unforeseen circumstances, the project impacts
may not be fully mitigated and the plan may reduce the survival and
recovery of a covered species.
Response 6: The assurances provided through this regulation are
consistent with the issuance criteria of the ESA. Before issuing a
permit, the Services ensure that the applicant minimizes and mitigates
the project impacts, to the maximum extent practicable, and that the
permitted activities avoid jeopardy to the continued existence of the
affected species.
In addition, in cases where significant data gaps exist, adaptive
management provisions are included in the HCP. The primary reason for
using adaptive management in HCPs is to allow for up-front, mutually
agreed upon changes in the operating conservation program that may be
necessary in light of subsequently developed biological information. In
the event of unforeseen circumstances, these strategies may be
redirected as long as the redirection is consistent with the scope of
the mutually agreed-upon adaptive management provisions of the HCP.
Issue 7: Many commenters stated that the applicant is legally
required to address all unforeseen circumstances in the HCP pursuant to
section 10. They noted that fire, disease, drought, flood, global
climate change, and non-point source pollution may be unforeseen, but
are not uncommon. Also the proposed regulation does not direct the
applicant to provide for all unforeseen circumstances that might occur
during the length of the permit because it is the Services'
responsibility to determine that there was an unforeseen circumstance
that was not addressed and is not the fault of the permittee
implementing the HCP. In addition, commenters noted that the nature of
many of the HCPs that the Services are approving increases the
likelihood for unforeseen events to happen (i.e., the permits are
issued for many years and cover large areas and many species).
Response 7: The Services disagree that HCPs must address all
hypothetical future events, no matter how remote the probability that
they may occur. Rather, the Services believe that only reasonably
foreseeable changes in circumstances need to be addressed in an HCP.
Moreover, these circumstances are likely to vary from HCP to HCP given
the ever changing mix of species and affected habitats covered by a
given plan. Nevertheless, the Services agree that the proposed rule's
treatment of unforeseen circumstances could be strengthened, and a
definition of unforeseen circumstances has been codified in this rule.
In particular, the Services would like to clarify that unforeseen
circumstances will only include events that could not reasonably have
been anticipated. All reasonably foreseeable circumstances, including
natural catastrophes that normally occur in the area, should be
addressed in the HCP. The final rule specifies how unforeseen
circumstances will be addressed if they occur during the life of the
permit.
Issue 8: Commenters believe that the proposed regulation would not
allow for social changes that could occur over the lifetime of the
permit. For example, they claim that the development and implementation
of the Emergency Salvage Timber rider has affected the success of the
conservation measures of several HCPs.
Response 8: There may be situations that do arise related to social
changes that could occur during the lifetime of the permit. In these
situations, the Services will use all of their legal authorities to
adequately address the changes. The Timber Salvage rider to the
Appropriations bill is actually a good example of how the
Administration responded to a change in social policy. On July 27,
1995, the President signed the Rescission Act (Public Law 104-19) that
provided funds for disaster relief and other programs. This bill
contained provisions for an emergency salvage timber sale, and directed
the preparation, offer, and award of timber salvage sales nationwide.
Although the bill passed, the President did not support the provision
that waived compliance with environmental laws during timber salvage
and directed the Secretaries of Agriculture, the Interior and Commerce,
and the heads of other agencies, to move forward to implement the
timber-related provisions of the bill in an expeditious and
environmentally-sound manner. The Services worked with other Federal
agencies to develop a process that, as a matter of Administration
policy, addressed compliance with all environmental laws while also
meeting the requirements of Pub. L. 104-19. An interagency team of
Federal agencies then drafted a process that addressed compliance with
the ESA through a streamlined section 7 consultation procedure to
ensure that these sales did not jeopardize listed species. In this
case, the Services and other Federal agencies cooperatively used their
administrative discretion and legal authorities to ameliorate adverse
impacts upon listed species conservation.
Issue 9: Several commenters believe that the proposed No Surprises
rule negates adaptive management provisions incorporated into HCPs, and
may not allow future jeopardy situations to be addressed, because
adaptive management must allow for adaptions to changes as they occur
rather than trying to plan for everything up front. In addition, many
commenters believe that in order to get No Surprises assurances, an HCP
must have an adaptive management program that addresses all foreseeable
biological and environmental changes and that is designed so that new
applicable scientific information and information developed through a
monitoring program is incorporated into the plan.
Response 9: The Services do not believe that the proposed rule
negates adaptive management provisions incorporated into HCPs for the
species with biological data gaps. The No Surprises assurances only
apply to an approved HCP that has otherwise satisfied the issuance
criteria under section 10(a)(2)(B) of the ESA. When considering permits
where there are significant biological data gaps, the
[[Page 8864]]
Services have two choices: either deny an HCP permit application due to
the inadequacy of the overall proposed plan, or build in adaptive
management and monitoring provisions where warranted because of
biological data gaps and issue the permit. If there is significant
uncertainty associated with the operating conservation program,
adaptive management becomes an integral component of the HCP.
Incorporating adaptive management provisions into the HCP becomes
important to the planning process and the long-term interest of
affected species when HCPs cover species with significant biological
data gaps. Through adaptive management, the biological objectives of an
operating conservation program are defined using techniques such as
models of the ecological system that includes its components,
interactions, and natural fluctuations. If existing data makes it
difficult to predict exactly what conservation and mitigation measures
are needed to achieve a biological objective, then an adaptive
management approach should be used in the HCP. Under adaptive
management, the HCP's operating conservation program can be monitored
and analyzed to determine if it is producing the desired results (e.g.,
properly functioning riparian habitats). If the desired results are not
being achieved, then adjustments in the program can be considered
through an adaptive management clause of the HCP. Thus, adaptive
management can be an integral part of the operating conservation
program for an HCP and can be implemented to adjust strategies
accordingly. The Services support continuing to strengthen the
effectiveness of adaptive management provisions in HCPs and intend to
do so in further revisions to the HCP Handbook.
Issue 10: Numerous commenters stated that the proposed regulation
should identify secured sources of funding that do not rely on
appropriations for the implementation of conservation measures that may
be needed to address unforeseen circumstances.
Response 10: Funding mechanisms of this type would have to be
established through Congressional action. Absent Congressional action
on this matter, the Services must operate with the fiscal resources
otherwise made available to them through the appropriations process.
Moreover, in approving an HCP in the first instance, the Services must
conclude that the permittee has provided for adequate funding to
implement the terms of the HCP.
Issue 11: Many commenters stated that the Federal government is not
capable of shouldering the financial burden of funding the
implementation of conservation measures that may be needed to address
unforeseen circumstances. The hardship of paying for any changes needed
in the HCP on the government may have severe and far reaching effects
on funding for other Federal activities. In addition, some commenters
noted that the proposed regulation unlawfully shifts the burden of
funding to the Services when section 10 clearly states that the
applicant will provide the funding. Numerous commenters stated that the
government does not have guaranteed funding for covering unforeseen
circumstances and cannot make such guarantees in violation of the Anti-
Deficiency Act.
Response 11: The ESA requires the Service to find that an
incidental take permittee has provided adequate funding to implement an
HCP in the first instance. In addition, the Services must ensure that
HCPs are designed to adequately mitigate the incidental take authorized
by the permit, include measures to deal with unforeseen circumstances
that may arise, and comply with such other measures that the Secretary
may require as being necessary or appropriate for purposes of the plan.
Once the Services have concluded that a permittee has initially
satisfied the issuance criteria in section 10(a), there is nothing in
the ESA that precludes the Services from assuming additional
responsibility for species covered under the terms of an HCP,
especially when such responsibilities are limited to highly unlikely
unforeseen circumstances. In fact, the Services have responsibility for
listed species conservation regardless of whether an HCP is involved or
not, and carrying out that responsibility (for example, through the
initiation of litigation to enforce section 9 of the ESA) is also
dependent upon the availability of appropriated funds. Therefore, at a
conceptual level, the lack of guaranteed funding to handle a breakdown
of an HCP due to unforeseen circumstances is no different from a lack
of guaranteed funding to enforce the ESA generally.
The Anti-Deficiency Act applies to the Services' activities under
the ESA as it does to their activities under all other environmental
laws. In the face of an unexpected species decline, where additional
conservation efforts are warranted, the Services have significant
resources at their disposal to address the comparative needs of the
species. As noted earlier in Response #3, the Services can also work
with Congress, other Federal, State, and local agencies, tribes,
environmental groups, and private entities to help ensure the continued
conservation of the species in the wild. The Services have a variety of
tools available to ensure that the needs of the species affected by
unforeseen circumstances are adequately addressed, including land
acquisition or exchange, habitat restoration or enhancement,
translocation, and other management techniques. Thus, the Services
believe they have a wide array of options and resources available to
respond to any unforseen circumstances.
Issue 12: Many commenters noted that many HCPs do not have adequate
funding, and the Services must not issue an incidental take permit
unless an applicant has secured adequate funding to address all
foreseeable changes that might be needed in the conservation measures
during the lifetime of the permit. County or State Bonds that are not
guaranteed should not be considered ``adequate funding.''
Response 12: Section 10(a)(2)(B)(iii) requires incidental take
permit applicants to ``ensure that adequate funding for the plan will
be provided.'' This issuance criterion requires that the applicant
detail the funding that will be available to implement the proposed
operating conservation program. Therefore, all conservation plans
specify funding requirements necessary to implement the plan. The
Services issue a permit only when they have concluded that the
operating conservation program will be adequately funded. No Surprises
only applies to an HCP that is being properly implemented, and if a
major component of an HCP, like its funding strategy, is never
initiated or implemented, then No Surprises no longer applies and the
assurances lapse.
The FWS has incorporated provisions into HCPs that allow for a
reevaluation of species coverage in case a County or State Bond that is
supposed to meet the adequate funding issuance criterion ultimately is
not passed. Under these provisions, the list of species authorized for
incidental take may be diminished if funding is not in place within a
specified time frame, and any incidental take that would occur before
the bond measure is acted upon would have to be adequately mitigated
up-front. This reevaluation mechanism was used in the Multiple Species
Conservation Program for southwestern San Diego County, California.
This type of reevaluation process will be incorporated into other HCPs
that rely on proposed bonds to provide required funding.
[[Page 8865]]
Issue 13: Many commenters stated that funding and accountability
mechanisms are more complicated for permits that involve third party
beneficiaries (e.g., certificates of inclusion), and that these types
of permits should not include assurances.
Response 13: The Services believe that the assurances provided by
the final rule should be available to individuals who participate in
HCPs through a larger regional planning process. These large-scale,
regional HCPs can significantly reduce the burden of the ESA on small
landowners by providing efficient mechanisms for compliance,
distributing the economic and logistical impacts of endangered species
conservation among the community, and bringing a broad range of
landowner activities under the HCPs' legal protection. In addition,
these large-scale HCPs allow for ecosystem planning, which can provide
benefits to more species than small-scale HCPs. Large-scale HCPs also
provide the Services with a better opportunity for analyzing the
cumulative effects of the projects, which is more efficient than the
piecemeal approach that could result if each landowner developed his/
her own HCP. The Services do believe, however, that the party that
holds the ``overarching'' permit, and issues subpermits (e.g.,
Certificates of Inclusion or Participation Certificates) must have the
legal authority to enforce the terms and conditions of the permit and
the underlying funding mechanisms for the HCP.
Issue 14: Many commenters requested the Services to remove the
permit-shield provision from the proposed regulation because it
improperly restricts the authority of the Secretary and citizens to
enforce the requirements of the ESA. These commenters assert that the
Services do not have the authority to prevent citizens from suing those
who are in violation of the ESA. One commenter stated that the permit-
shield provision lacks important limitations found in other permit-
shield provisions, such as the Clean Water Act and Resource
Conservation and Recovery Act. Commenters also stated that the proposed
permit-shield provision conflicts with the citizen suit provision in
section 11(g) of the ESA. Other commenters supported the proposed
permit-shield provision and urged the Service to incorporate it into
the final rule. These commenters believe failure to include a permit-
shield provision would undercut the No Surprises assurances by exposing
permit holders to potential enforcement actions even if they are
complying fully with the terms and conditions of valid permits.
Response 14: After further review of the permit-shield concept,
including a review of legal authorities, the Services have decided not
to include a legally binding permit-shield provision in the final rule.
The purpose of the permit-shield provision was to provide certainty to
permittees regarding their legal obligations. The current statutory and
regulatory framework appears to already provide permittees with that
certainty. Although commenters stated that a permit holder might still
be vulnerable to government-initiated enforcement actions
notwithstanding the No Surprises assurances, the Services cannot
identify situations in which a permittee would be in violation of
Sections 9 or 11 of the ESA, if in fact they were acting within the
permit's authorization and were complying with the terms and conditions
of the permit.
In addition, as part of the review of legal authorities, the
Services reviewed the court decision in Shell Oil Company v.
Environmental Protection Agency, 950 F.2d 741, 761-765 (D.C. Cir.
1991), which addressed the legality of the Environmental Protection
Agency's permit-shield rule for permits issued under the Resource
Conservation and Recovery Act (RCRA). Although that decision upheld the
RCRA permit-shield rule promulgated by the EPA, 40 CFR 270.4(a), the
Services are concerned that the incidental take permit program is
sufficiently different from the RCRA permit program that the Shell Oil
decision may not support a permit-shield rule for incidental take
permits. For instance, the court noted that the maximum term of RCRA
permits is 10 years, which is considerably shorter than the terms of
most incidental take permits. In addition, the EPA retains explicit
authority to modify or terminate RCRA permits in response to
information arising after a permit is issued that would have justified
different permit terms had it existed when the permit was issued. In
contrast, the No Surprises rule commits the Service to issue permits
that do not require additional land, water, or financial compensation
or additional restrictions on the use of land, water, or other natural
resources if unforeseen circumstances arise.
Although the Services have decided not to include a legally binding
permit-shield provision in the final rule, they nonetheless strongly
support a policy that permittees should feel free of potential
prosecution if they are acting under the authorizations of their permit
and are complying with the terms and conditions of the permit. The
Services therefore will continue their policy of not enforcing the
prohibitions of Section 9 of the ESA against any incidental take
permittee who complies fully with the terms and conditions of the
permit.
Many commenters requested that the Services remove the permit-
shield provision from the proposed regulation because it improperly
restricts the authority of citizens to enforce the requirements of the
ESA. The purpose of the proposed permit-shield provision was to provide
that the Services would not utilize Section 11(e) of the ESA to enforce
Section 9 prohibitions against a permittee who is in full compliance
with the terms and conditions of a permit. The permit-shield provision
would not, therefore, have restricted citizen suits.
Issue 15: Commenters believe that the regulatory assurances
provided to the permittee deprive citizens of the right to have general
oversight of HCPs, including challenging government's management
decisions, guaranteeing that landowners are in compliance with the
agreements, and ensuring that the plans are actually working to
conserve listed species.
Response 15: The No Surprises assurances do not deprive citizens of
HCP oversight or of their ability to challenge an improperly issued HCP
permit. In addition, all Service decision documents (such as approval
of HCP management plans) are part of the Administrative Record for any
individual HCP and are available to any member of the public upon
request. Nothing in this rule prevents citizens from challenging the
adequacy of those decisions or bringing HCP permit terms and conditions
compliance issues to the Services' attention. The Services welcome
citizen input on HCP implementation. Public comments must be considered
in all permit decisions. Providing No Surprises assurances to an HCP
permittee does not eliminate this public comment period. In addition,
the Services or any party designated as responsible by the Services
(e.g., State wildlife agency, local government) in the HCP will be
expected to monitor the project for compliance with the terms of the
incidental take permit and HCP. The Services also require periodic
reporting from the permittee in order to maintain oversight to ensure
the implementation of the HCP's terms and conditions. The final rule
does nothing to affect these reporting requirements.
Issue 16: Numerous commenters stated that the proposed regulation
should provide for permits to contain a reopener clause. Any entity
(e.g., landowners, government agencies, ecologists, environmentalists)
would then be able to reopen the permit for any of the following
reasons: 1) Any
[[Page 8866]]
party fails to implement the terms and conditions of the permit; (2)
new listings of any species not covered; and (3) monitoring indicates
that conservation goals are not being met and that the operating
conservation program is ineffective.
Response 16: The HCP process already provides various mechanisms
for reopening an HCP. First, the Services may suspend, or in certain
circumstances, revoke all or part of the privileges authorized by a
permit if the permittee does not comply with the terms and conditions
of the permit or with applicable laws and regulations governing the
permitted activity. If an HCP permit is suspended or revoked,
incidental take must cease. The provisions of most HCPs expressly
address permit suspension or revocation procedures. Second, if a
species was not initially listed on an HCP permit, it may not be
automatically covered by an HCP when subsequently listed. For example,
if a species was not originally listed on a permit, the HCP must be
formally amended. Amendment of a section 10(a)(1)(B) permit is also
required when the permittee wishes to significantly modify the project,
activity, or conservation program as described in the original HCP.
Such modifications might include significant boundary revisions,
alterations in funding or schedule, or an addition of a species to the
permit that was not addressed in the original HCP. The Services
encourage the public to provide them with applicable information
concerning any approved HCP that would be useful in evaluating the
effectiveness of the HCP or other concerns they may have.
Issue 17: Numerous commenters stated that the assurances provided
through these proposed regulations should not be automatic and should
be commensurate with risk, and that the Services should provide
assurances to a permittee only if the HCP includes specific objectives
or measurable biological goals that must be met and that would ensure
the conservation of the species, if they are attained.
Response 17: The Services believe that the commitments of an HCP
must be specifically identified and scientifically based, reflecting
the particular needs of the species that are covered. Thus, the concept
of comparative risk to various species is factored in by the Services
as they assess the adequacy of the operating conservation program for a
given HCP. The Services will not approve an HCP permit request found to
be inadequate, but will provide No Surprises assurances to all HCPs
that are found to be adequate.
For many recent HCPs, the Services are defining specific biological
goals. Furthermore, comprehensive monitoring programs provide added
value for measuring progress toward meeting the goals and commitments
and ensuring that the permittee is in compliance with the permit. The
Services often incorporate monitoring measures to assess whether goals
are being met, especially in cases where additional information may be
desirable or there is significant scientific uncertainty. If existing
data makes it difficult to predict exactly what measures are needed to
achieve a biological objective, then an adaptive management strategy is
usually required. Adaptive management, which then becomes an integral
component of the operating conservation program, is not negated by the
No Surprises assurances because it was a part of the HCP's operating
conservation program as approved by the Services.
Issue 18: Most commenters stated that to get assurances, a
multispecies HCP must adequately cover each individual species rather
than collectively cover a group of species defined by some type of
commonality (e.g., guild or habitat).
Response 18: The Services believe that each species in a
multispecies HCP must be adequately addressed by satisfying the permit
issuance criteria under section 10(a)(2)(B) of the ESA. The Services
believe, nevertheless, that in some cases, using a ``guilding'' or
habitat-based approach to craft preserve designs or management measures
may be appropriate.
However, even when such tools are used, the Services will ensure
that for each species that receives assurances, the species must be
specifically named in the HCP, and adequate conservation measures are
included in the plan.
Issue 19: Commenters believe that to get assurances, an HCP must
have an adequate and comprehensive biological monitoring program that
addresses all foreseeable changes in circumstances that may occur over
the lifetime of the permit.
Response 19: Monitoring is already an element of HCPs under the
Services' Federal regulations [50 CFR 17.22(b)(1), 17.32(b)(1), and
222.22]. Monitoring is also an important tool for HCPs, and their
associated permit and Implementing Agreements, and should be properly
designed and implemented. The scope of the monitoring program should be
sufficient to address reasonably foreseeable changes in circumstances
that occur during the life of the permit. Monitoring is needed to
obtain the information necessary to properly assess the impacts from
the HCP and to ensure that HCPs are properly implemented. Monitoring
will also allow the use of the scientific data obtained on the effects
of the plan's operating conservation program to modify specific
strategies through adaptive management, and to enhance future
strategies for the conservation of species and their habitat.
While the Services appreciate the numerous benefits of a well-
developed monitoring program, some low-effect HCPs have minimal
monitoring requirements because the impacts from the plan are minor or
negligible, and the attempt by the commenters to make an extensive
monitoring program a requirement for No Surprises assurances is
misplaced. A well-developed monitoring program will add to the
credibility of an HCP proposal and will facilitate the eventual
approval of the HCP. Thus, the Services believe that the real test for
receiving the No Surprises assurances should be whether the issuance
criteria under section 10(a) have been satisfied, and not whether a
particular conservation tool, such as monitoring, has been extensively
employed under an HCP whether it is needed or not.
Issue 20: Numerous commenters stated that to get assurances for
unlisted species, a plan must be in place that describes what is
necessary for their long-term conservation. Commenters encouraged a
standard for unlisted species equal to that used in the proposed policy
and regulations for the Candidate Conservation Agreements (CCAs).
Response 20: While the Services agree that these two types of
agreements are similar, the purposes of the proposed CCA policy and the
No Surprises rule are somewhat different. As stated in the proposed CCA
policy, the ultimate goal of these agreements is to encourage
landowners and State and local land managing agencies to manage their
lands in a manner that, if adopted on a broad enough scale by similarly
situated landowners, would remove threats to species and thereby
obviate the need to list them under the ESA. The purposes of including
unlisted species in HCPs and of making them subject to No Surprises
assurances, are to enlist landowners in efforts to conserve these
species and to provide certainty to landowners who are willing to make
long-term commitments to the conservation of listed and unlisted
species that they will not be subjected to additional conservation and
mitigation measures if one of the species is listed, except as provided
in their HCPs. The standards for including an unlisted species under an
HCP are the
[[Page 8867]]
issuance criteria under section 10(a)(2)(B) of the ESA. For HCPs, the
Services will continue to use the conservation standard identified in
the Habitat Conservation Planning Handbook for unlisted species. The
Handbook clearly states that an unlisted species is ``adequately
covered'' in an HCP only if it is treated as if it were listed pursuant
to section 4 of the ESA, and if the HCP meets the permit issuance
criteria in section 10(a)(2)(B) of the ESA with respect to the species.
The No Surprises assurances apply only to species (listed and unlisted)
that are adequately covered in the HCP. Species, whether listed or
nonlisted, will not be included in the HCP permit if data gaps or
insufficient information make it impossible to craft conservation and
mitigation measures for them, unless these data gaps can be overcome
through the inclusion of adaptive management clauses in the HCP.
Issue 21: Many commenters requested an addition to the rule that
would address the early termination of an HCP. Commenters want the
Services to discuss the possibility of terminating an HCP, including
how the assurances and applicable mitigation apply to the termination.
Response 21: The Services believe that such a requested change is
unnecessary. The No Surprises assurances apply during the life of the
permit, provided that the HCP is properly implemented and the terms and
conditions of the HCP incidental take permit are being followed. Should
a permit be terminated early, the No Surprises assurances also
terminate as of the same date. The question of how outstanding
mitigation responsibilities should be handled upon early termination is
a more generic HCP policy issue that is unrelated to the No Surprises
assurances and is, therefore, beyond the scope of this particular
rulemaking.
Issue 22: Several commenters stated that the proposed rule was
confusing regarding the different level of assurances established in
the proposed rule (for regular HCPs and for HCPs that provide a ``net
benefit'' to the covered species) and that the distinction between the
two levels should be clarified further or only one level of assurances
should be provided to HCP permittees.
Response 22: The Services agree that these distinctions were
unnecessarily confusing and have revised the final rule accordingly.
The final rule requires the Services to provide only one level of
assurances to any permittee that has an approved HCP permit. The
Services eliminated the level of assurances for HCPs that were
developed to provide a net benefit for the covered species since the
distinction between the two types of HCPs were very difficult to
delineate in practice.
Issue 23: Commenters noted that there were differences between the
regulations, such as FWS use of the term ``unforeseen'' circumstances
throughout the proposed rule, whereas NMFS used the terms
``unforeseen'' and ``extraordinary'' circumstances in their proposed
rule.
Response 23: The Services agree that there was some confusion and
have made the regulations consistent between the two agencies, where
possible. Moreover, there was never an intention in the August 1994 No
Surprises announcement to create a substantive difference between
``unforeseen'' and ``extraordinary'' circumstances. NMFS will use the
term ``unforeseen'' in its regulations in place of ``extraordinary.''
Revisions to the Proposed Rule
The following represents a summary of the revisions to the proposed
rule as a result of the consideration of the public comments received
during this rulemaking process. The Services have rewritten the
``Assurances'' section of the preamble and regulatory language to
improve clarity and readability. Many commenters were confused by the
language in the proposed rule, and asked the Services to provide a
clearer explanation of this section. Accordingly, the Services have
edited and reorganized the Assurances provision, but have not made any
substantive changes.
(1) Some of the definitions used in this rulemaking process will
now be codified as definitions in 50 CFR 17.3 for FWS and 50 CFR 222.3
for NMFS. These definitions were concepts identified in the
``Background'' section of the proposed rule.
(2) The rule was revised so the Services will only provide
assurances for species listed on a permit that are adequately covered
in the conservation plan and specifically identified on the permit.
(3) The Services have clarified that the duration of the assurances
is the same as the length of the permit.
(4) The Services revised the rule so that there is only one level
of assurances provided to permittees, instead of one level of
assurances for standard HCPs and another level for HCPs that were
developed to provide a ``net benefit'' for the covered species.
(5) The Services have clarified the rule so that it is apparent
that No Surprises assurances do not apply to Federal agencies who have
a continuing obligation to contribute to the conservation of threatened
and endangered species under section 7(a)(1) of the ESA.
(6) The Services believe that HCPs are, and will continue to be,
carefully crafted so that unforeseen circumstances will be rare, if at
all, and that the Services will be able to successfully handle any
unforeseen circumstance so that species are not jeopardized. To help
ensure that unforeseen circumstances are a rare occurrence, the Service
revised the rule in appropriate areas.
(7) The Services replaced the term ``properly functioning,'' which
was used in the proposed rule to ``properly implemented.'' This change
accurately reflects the intent of the Services when discussing the
implementation of HCPs.
(8) The Services eliminated the permit-shield provisions from the
final rule.
(9) The Services revised the final rule by replacing the term
``property interests'' with the term ``natural resources,'' which more
accurately describes the intent of the Services.
Description/Overview of the Final Habitat Conservation Plan Assurances
(``No Surprises'' Policy) Rule
The information presented below briefly describes the ``No
Surprises'' assurances adopted in this final rule. These assurances
provide economic and regulatory certainty for non-Federal property
owners that participate in the ESA's section 10(a)(1)(B) permitting
process through the following:
1. General assurances. The No Surprises assurances apply only to
incidental take permits issued in accordance with the requirements of
the Services' regulations where the conservation plan is being properly
implemented, and apply only to species adequately covered by the
conservation plan.
Discussion: Once an HCP permit has been issued and its terms and
conditions are being fully complied with, the permittee may remain
secure regarding the agreed upon cost of conservation and mitigation.
If the status of a species addressed under an HCP unexpectedly worsens
because of unforeseen circumstances, the primary obligation for
implementing additional conservation measures would be the
responsibility of the Federal government, other government agencies, or
other non-Federal landowners who have not yet developed an HCP.
``Adequately covered'' under an HCP for listed species refers to
any species addressed in an HCP that has satisfied the permit issuance
criteria under section 10(a)(2)(B) of the ESA. For
[[Page 8868]]
unlisted species, the term refers to any species that is addressed in
an HCP as if it were listed pursuant to section 4 of the ESA and is
adequately covered by HCP conditions that would satisfy permit issuance
criteria under section 10(a)(2)(B) of the ESA if the species were
actually listed. For a species to be covered under a HCP it must be
listed on the section 10(a)(1)(B) permit. These assurances apply only
to species that are ``adequately covered'' in the HCP.
``Properly implemented conservation plan'' means any HCP,
Implementing Agreement, and permit whose commitments and provisions
have been and are being fully implemented by the permittee and in which
the permittee is in full compliance with the terms and conditions of
the permit, so the HCP is consistent with the agreed-upon operating
conservation program for the project.
2. Changed circumstances provided for in the plan. If additional
conservation and mitigation measures are deemed necessary to respond to
changes in circumstances that were provided for in the plan's operating
conservation program, the permittee will be expected to implement the
measures specified in the plan.
3. Changed circumstances not provided for in the plan. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances that were not provided for in the
plan's operating conservation program, the Services will not require
any conservation and mitigation measures in addition to those provided
for in the plan without the consent of the permittee, provided the plan
is being properly implemented.
Discussion: It is important to distinguish between ``changed'' and
``unforeseen'' circumstances. Many changes in circumstances during the
course of an HCP can reasonably be anticipated and planned for in the
conservation plan (e.g., the listing of new species, or a fire or other
natural catastrophic event in areas prone to such events), and the
plans should describe the modifications in the project or activity that
will be implemented if these circumstances arise. ``Unforeseen
circumstances'' are changes in circumstances affecting a species or
geographic area covered by an HCP that could not reasonably have been
anticipated by plan developers or the Services at the time of the HCP's
negotiation and development, and that result in a substantial and
adverse change in the status of a covered species (e.g., the eruption
of Mount St. Helens was not reasonably foreseeable).
4. Unforeseen circumstances. In negotiating unforeseen
circumstances, the Services will not require without the consent of the
permittee, the commitment of additional land, water or financial
compensation or additional restrictions on the use of land, water,
including quantity and timing of delivery, or other natural resources
beyond the level otherwise agreed upon for the species covered by the
conservation plan.
If additional conservation and mitigation measures are deemed
necessary to respond to unforeseen circumstances, the Services may
require additional measures of the permittee where the conservation
plan is being properly implemented, but only if such measures are
limited to modifications within conserved habitat areas, if any, or to
the conservation plan's operating conservation program for the affected
species, and maintain the original terms of the conservation plan to
the maximum extent possible. Additional conservation and mitigation
measures will not involve the commitment of additional land, water or
financial compensation or restrictions on the use of land, water
(including quantity and timing of delivery), or other natural resources
otherwise available for development or use under the original terms of
the conservation plan, without the consent of the permittee.
In determining unforeseen circumstances, the Services will have the
burden of demonstrating that such unforeseen circumstances exist, using
the best scientific and commercial data available. These findings must
be clearly documented and based upon reliable technical information
regarding the status and habitat requirements of the affected species.
The Services will consider, but not be limited to, the following
factors: size of the current range of the affected species; percentage
of range adversely affected by the conservation plan; percentage of
range conserved by the conservation plan; ecological significance of
that portion of the range affected by the conservation plan; level of
knowledge about the affected species and the degree of specificity of
the species' conservation program under the conservation plan; and
whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
Discussion: The first criterion is self-explanatory. The second
identifies factors to be considered by the Services in determining
whether the unforeseen circumstances are biologically significant.
Generally, the inquiry would focus on the level of biological threats
to the affected species covered by the HCP and the degree to which the
welfare of those species is tied to a particular HCP. For example, if a
species is declining rapidly, and the HCP encompasses an ecologically
insignificant portion of the species' range, then unforeseen
circumstances warranting reconsideration of an HCP's conservation
program typically would not exist because the overall effect of the HCP
upon the species would be negligible or insignificant. Conversely, if a
species is declining rapidly and the HCP in question encompasses a
majority of the species' range, then unforeseen circumstances
warranting a review of an HCP's conservation program probably would
exist. If unforeseen circumstances are found to exist, the Services
will consider changes in the operating conservation program or
additional mitigation measures. However, measures required of the
permittee must be as close as possible to the terms of the original HCP
and must be limited to modifications within any conserved habitat area
or to adjustments within lands or waters that are already set aside in
the HCP's operating conservation program. ``Conserved habitat areas''
are areas explicitly designated for habitat restoration, acquisition,
protection, or other conservation uses under an HCP. An ``operating
conservation program'' consists of the conservation management
activities, which are expressly agreed upon and described in an HCP or
its Implementing Agreement and that are undertaken for the affected
species when implementing an approved HCP. Any adjustments or
modifications will not include requirements for additional land, water,
or financial compensation, or additional restrictions on the use of
land, water (including quantity and timing of delivery), or other
natural resources otherwise available for development or use under the
HCP, unless the permittee consents to such additional measures.
Modifications within conserved habitat areas or to the HCP's
operating conservation program means changes to the plan areas
explicitly designated for habitat protection or other conservation uses
under the HCP, or changes that increase the effectiveness of the HCP's
operating conservation program, provided that any such changes do not
impose new restrictions or require additional financial compensation on
the permittee's activities. Thus, if an HCP's operating conservation
program originally included a mixture of predator depredation control
and captive breeding, but subsequent
[[Page 8869]]
research or information demonstrated that one of these was considerably
more effective than the other, the Services would be able to request an
adjustment in the proportionate use of these tools, provided that such
an adjustment did not increase the overall costs to the HCP permittee.
Additionally, the No Surprises assurance does not preclude any Federal
agency from exercising its Federal reserved water rights.
The ``Unforeseen circumstances'' section of the HCP should discuss
the process for addressing those future changes in circumstances
surrounding the HCP that could not reasonably be anticipated by HCP
planners. While HCP permittees will not be responsible for bearing any
additional economic burden for more mitigation measures, other methods
remain available to respond to the needs of the affected species and to
assure that the goals of the ESA are satisfied. These include
increasing the effectiveness of the HCP's operating conservation
program by adjusting the program in a way that does not result in a net
increase in costs to the permittee, and actions taken by the government
or voluntary conservation measures taken by the permittee.
When negotiating the unforeseen provisions in an HCP, the permittee
cannot be required to commit additional land, funds, or additional
restrictions on lands, water (including quantity and timing of
delivery) or other natural resources released under an HCP for
development or use from any permittee who is implementing the HCP and
is abiding by all of the permit terms and conditions in good faith or
has fully implemented their commitments under an approved HCP.
Moreover, this rule does not preempt or affect any Federal reserved
water rights.
In the event of unforeseen circumstances, the Services will work
with the permittee to increase the effectiveness of the HCP's operating
conservation program to address the unforeseen circumstances without
requiring the permittee to provide an additional commitment of
resources as stated above. The specific nature of the requested changes
to the operating conservation program will vary among HCPs depending
upon individual habitat and species needs.
5. Nothing in this rule will be construed to limit or constrain the
Services, any Federal, State, local, or Tribal government agency, or a
private entity, from taking additional actions at its own expense to
protect or conserve a species included in a conservation plan.
Discussion: This means the Services or other entities can intervene
on behalf of a species at their own expense at any time and be
consistent with the assurances provided to the permittee under this
final rule. However, it is unlikely that the Services would have to
resort to protective or conservation action requiring new
appropriations of funds by Congress in order to meet their commitment
under this final rule (consistent with their obligations under the
ESA). If this unlikely event occurred, these actions would be subject
to the requirements of the Anti-Deficiency Act and the availability of
funds appropriated by Congress.
Also, nothing in this final rule prevents the Services from asking
a permittee to voluntarily undertake additional mitigation on behalf of
affected species. While an HCP permittee who has been implementing the
HCP and permit terms and conditions in good faith would not be
obligated to provide additional mitigation, the Services believe that
many landowners would be willing to consider additional conservation
assistance on a voluntary basis if a compelling argument for assistance
could be made.
The Services believe that it will be rare for unforeseen
circumstances to result in a jeopardy situation. However, in such
cases, the Services will use all of their authorities, will work with
other Federal agencies to rectify the situation, and work with the
permittee to redirect conservation and mitigation measures so as to
offset the likelihood of jeopardy. The Services have a wide array of
authorities and resources that can be used to provide additional
protection for threatened or endangered species covered by an HCP.
Required Determinations
A major purpose of this final rule is to provide section
10(a)(1)(B) permittees regulatory assurances related to the issuance of
an HCP permit. From the Federal government's perspective,
implementation of this rule would not result in additional expenditures
to the permittee that are above and beyond that already required
through the section 10(a)(1)(B) permitting process. There are, however,
benefits derived from HCPs for both the non-Federal permittees and the
species covered by the HCPs. HCPs are mechanisms that allow non-Federal
entities to continue with economic use or development activities, while
factoring species' conservation needs into natural resource management
decisions. Benefits to the covered species may include the conservation
of lands and waters upon which the species depends, decreased habitat
fragmentation, the removal of threats to candidate, proposed, or other
unlisted species, and in various instances, advancement of the recovery
of listed species. Non-Federal entities are then provided regulatory
assurances pursuant to an approved incidental take permit under section
10(a)(1)(B) of the ESA for those species that are adequately covered by
the permit, conditioned, of course, on the proper implementation of the
HCP. Since the Habitat Conservation Plan Assurances (``No Surprises''
policy) impose no additional economic costs or burdens upon an HCP
permittee, the Services have determined that the final rule would not
result in significant costs of implementation to non-Federal entities.
Information Collection/Paperwork Reduction Act
No significant effects are expected on non-Federal entities
exercising their option to enter into the HCP planning program because
there is no additional information required during the HCP development
or processing phase due solely to these regulatory assurances.
The Services have examined this final rule under the Paperwork
Reduction Act of 1995 and found it to contain no requests for
additional information or increase in the collection requirements
associated with incidental take permits other than those already
approved for incidental take permits with OMB approval #1018-0094,
which has an expiration date of February 28, 2001.
Economic Analysis
This final rule was subject to Office of Management and Budget
review under Executive Order 12866. However, the Services have
determined that there will be no additional costs placed on the non-
Federal entity associated with this final regulation. The No Surprises
policy, which was drafted in 1994, went through a public comment period
as part of the draft 1994 Habitat Conservation Planning Handbook (59 FR
65782, December 21, 1994), was included in the final 1996 Habitat
Conservation Planning Handbook (61 FR 63854, December 2, 1996), and
currently is being implemented in individual HCP permits as they are
issued after an opportunity for public comment. The No Surprises
assurances provided to permittees through these final rules apply to
the HCP permitting process only, and the Services have determined that
there will be no additional information required of non-Federal
entities through the HCP permitting process to provide assurances to
the permittee.
The Department of the Interior has certified that this rulemaking
will not
[[Page 8870]]
have a significant economic impact on a substantial number of small
entities, which includes businesses, organizations, or governmental
jurisdictions. This final rule will provide non-Federal entities
regulatory certainty pursuant to an approved incidental take permit
under section 10(a)(1)(B) of the Act. No significant effects are
expected on non-Federal entities exercising their option to enter into
the HCP planning program because there will be no additional
information required through the HCP process due to the application of
assurances or ``No Surprises.'' Therefore, this rule would have a
minimal effect on such entities. NMFS has also reviewed this rule under
the Regulatory Flexibility Act of 1980 and concurs with the above
certification.
The implementation of the final Habitat Conservation Plan
Assurances rule does not require any additional data not already
required by the HCP process. Regulatory assurances are provided to the
permittee if the HCP is properly implemented, and if all the terms and
conditions of the HCP, permit, or Implementing Agreement are all being
met. The underlying economic basis of comparing the final rule with and
without the assurances was used to determine if there existed any
potential economic effects from implementing this policy. Since the
rule is being implemented with existing data, there are no incremental
costs being imposed on non-Federal landowners. The benefits generated
by this rule are being shared by the Services (i.e., less habitat
fragmentation, habitat management, and protection for covered species)
and by non-Federal landowners (i.e., assurances that approved HCPs will
allow for future economic uses of non-Federal land without further
conservation and mitigation measures).
There are no specific data to assess the effects on businesses from
this rule. To the extent businesses are affected, however, such effects
would be positive, not negative. Until specific HCPs are approved, it
is not possible to determine effects on commodity prices, competition
or jobs. Moreover, any economic effects would likely be tied to the
cost of the development and implementation of the HCP itself and not to
these assurances. There is a positive effect expected on the
environment because these assurances act as an incentive for non-
Federal entities to seek HCPs and to factor species conservation needs
into national resources management decisions. No effect on public
health and safety is expected from this rule. Therefore, this rule most
likely would not have a significant effect on a substantial number of
small entities.
The Services have determined and certify pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities. No additional information will
be required from a non-Federal entity solely as a result of these
assurances.
Civil Justice Reform
The Departments have determined that these final regulations meet
the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
National Environmental Policy Act
The Department has determined that the issuance of the final rule
is categorically excluded under the Department of the 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 final rule
qualifies for a categorical exclusion and falls within the categorical
exclusion criteria in NOAA 216-3 Administrative Order, Environmental
Review Procedure.
List of Subjects
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
50 CFR Part 222
Administrative practices and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
For the reasons set out in the preamble, the Services amend Title
50, Chapter I, subchapter B; and Title 50, Chapter II, subchapter C of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
Subpart C--Endangered Wildlife
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. The FWS amends Sec. 17.3 by adding the following definitions
alphabetically to read as follows:
* * * * *
Adequately covered means, with respect to species listed pursuant
to section 4 of the ESA, that a proposed conservation plan has
satisfied the permit issuance criteria under section 10(a)(2)(B) of the
ESA for the species covered by the plan, and, with respect to unlisted
species, that a proposed conservation plan has satisfied the permit
issuance criteria under section 10(a)(2)(B) of the ESA that would
otherwise apply if the unlisted species covered by the plan were
actually listed. For the Services to cover a species under a
conservation plan, it must be listed on the section 10(a)(1)(B) permit.
* * * * *
Changed circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan that can
reasonably be anticipated by plan developers and the Service and that
can be planned for (e.g., the listing of new species, or a fire or
other natural catastrophic event in areas prone to such events).
Conserved habitat areas means areas explicitly designated for
habitat restoration, acquisition, protection, or other conservation
purposes under a conservation plan.
Conservation plan means the plan required by section 10(a)(2)(A) of
the ESA that an applicant must submit when applying for an incidental
take permit. Conservation plans also are known as ``habitat
conservation plans'' or ``HCPs.''
* * * * *
Operating conservation program means those conservation management
activities which are expressly agreed upon and described in a
conservation plan or its Implementing Agreement, if any, and which are
to be undertaken for the affected species when implementing an approved
conservation plan, including measures to respond to changed
circumstances.
* * * * *
Properly implemented conservation plan means any conservation plan,
Implementing Agreement and permit whose commitments and provisions have
been or are being fully implemented by the permittee.
* * * * *
Unforeseen circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan that could
not reasonably have been anticipated by plan developers and the Service
at the time of the conservation plan's negotiation and development, and
that result in a substantial and adverse
[[Page 8871]]
change in the status of the covered species.
* * * * *
3. The FWS amends Sec. 17.22 by adding paragraphs (b) (5) and (6)
to read as follows:
Sec. 17.22 Permits for scientific purposes, enhancement of propagation
or survival, or for incidental taking.
* * * * *
(b) * * *
(5) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (b)(5) apply
only to incidental take permits issued in accordance with paragraph
(b)(2) of this section where the conservation plan is being properly
implemented, and apply only with respect to species adequately covered
by the conservation plan. These assurances cannot be provided to
Federal agencies. This rule does not apply to incidental take permits
issued prior to March 25, 1998. The assurances provided in incidental
take permits issued prior to March 25, 1998 remain in effect, and those
permits will not be revised as a result of this rulemaking.
(i) Changed circumstances provided for in the plan. If additional
conservation and mitigation measures are deemed necessary to respond to
changed circumstances and were provided for in the plan's operating
conservation program, the permittee will implement the measures
specified in the plan.
(ii) Changed circumstances not provided for in the plan. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and such measures were not provided
for in the plan's operating conservation program, the Director will not
require any conservation and mitigation measures in addition to those
provided for in the plan without the consent of the permittee, provided
the plan is being properly implemented.
(iii) Unforeseen circumstances. (A) In negotiating unforeseen
circumstances, the Director will not require the commitment of
additional land, water, or financial compensation or additional
restrictions on the use of land, water, or other natural resources
beyond the level otherwise agreed upon for the species covered by the
conservation plan without the consent of the permittee.
(B) If additional conservation and mitigation measures are deemed
necessary to respond to unforeseen circumstances, the Director may
require additional measures of the permittee where the conservation
plan is being properly implemented, but only if such measures are
limited to modifications within conserved habitat areas, if any, or to
the conservation plan's operating conservation program for the affected
species, and maintain the original terms of the conservation plan to
the maximum extent possible. Additional conservation and mitigation
measures will not involve the commitment of additional land, water or
financial compensation or additional restrictions on the use of land,
water, or other natural resources otherwise available for development
or use under the original terms of the conservation plan without the
consent of the permittee.
(C) The Director will have the burden of demonstrating that
unforeseen circumstances exist, using the best scientific and
commercial data available. These findings must be clearly documented
and based upon reliable technical information regarding the status and
habitat requirements of the affected species. The Director will
consider, but not be limited to, the following factors:
(1) Size of the current range of the affected species;
(2) Percentage of range adversely affected by the conservation
plan;
(3) Percentage of range conserved by the conservation plan;
(4) Ecological significance of that portion of the range affected
by the conservation plan;
(5) Level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the conservation
plan; and
(6) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
(6) Nothing in this rule will be construed to limit or constrain
the Director, any Federal, State, local, or Tribal government agency,
or a private entity, from taking additional actions at its own expense
to protect or conserve a species included in a conservation plan.
Subpart D--Threatened Wildlife
4. The FWS amends Sec. 17.32 by adding paragraphs (b)(5) and (6) to
read as follows:
Sec. 17.32 Permits--general.
* * * * *
(b) * * *
(5) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (b)(5) apply
only to incidental take permits issued in accordance with paragraph
(b)(2) of this section where the conservation plan is being properly
implemented, and apply only with respect to specifies adequately
covered by the conservation plan. These assurances cannot be provided
to Federal agencies. This rule does not apply to incidental take
permits issued prior to [insert 30 days after the date of publication
in the Federal Register]. The assurances provided in incidental take
permits issued prior to [insert 30 days after the date of publication
in the Federal Register] remain in effect, and those permits will not
be revised as a result of this rulemaking.
(i) Changed circumstances provided for in the plan. If additional
conservation and mitigation measures are deemed necessary to respond to
changed circumstances and were provided for in the plan's operating
conservation program, the permittee will implement the measures
specified in the plan.
(ii) Changed circumstances not provided for in the plan. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and such measures were not provided
for in the plan's operating conservation program, the Director will not
require any conservation and mitigation measures in addition to those
provided for in the plan without the consent of the permittee, provided
the plan is being properly implemented.
(iii) Unforeseen circumstances. (A) In negotiating unforeseen
circumstances, the Director will not require the commitment of
additional land, water, or financial compensation or additional
restrictions on the use of land, water, or other natural resources
beyond the level otherwise agreed upon for the species covered by the
conservation plan without the consent of the permittee.
(B) If additional conservation and mitigation measures are deemed
necessary to respond to unforeseen circumstances, the Director may
require additional measures of the permittee where the conservation
plan is being properly implemented, but only if such measures are
limited to modifications within conserved habitat areas, if any, or to
the conservation plan's operating conservation program for the affected
species, and maintain the original terms of the conservation plan to
the maximum extent possible. Additional conservation and mitigation
measures will not involve the commitment of additional land, water or
financial compensation or additional restrictions on the use of land,
water, or other natural resources otherwise available for development
or use under the original
[[Page 8872]]
terms of the conservation plan without the consent of the permittee.
(C) The Director will have the burden of demonstrating that such
unforeseen circumstances exist, using the best scientific and
commercial data available. These findings must be clearly documented
and based upon reliable technical information regarding the status and
habitat requirements of the affected species. The Director will
consider, but not be limited to, the following factors:
(1) Size of the current range of the affected species;
(2) Percentage of range adversely affected by the conservation
plan;
(3) Percentage of range conserved by the conservation plan;
(4) Ecological significance of that portion of the range affected
by the conservation plan;
(5) Level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the conservation
plan; and
(6) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
(6) Nothing in this rule will be construed to limit or constrain
the Director, any Federal, State, local, or Tribal government agency,
or a private entity, from taking additional actions at its own expense
to protect or conserve a species included in a conservation plan.
PART 222--ENDANGERED FISH OR WILDLIFE
5. The authority citation for part 222 is revised to read as
follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
Subpart C--Endangered Fish or Wildlife Permits
6. In part 222, a new section is added to read as follows:
222.3 Definitions.
These definitions apply only to Sec. 222.22:
Adequately covered means, with respect to species listed pursuant
to section 4 of the ESA, that a proposed conservation plan has
satisfied the permit issuance criteria under section 10(a)(2)(B) of the
ESA for the species covered by the plan and, with respect to unlisted
species, that a proposed conservation plan has satisfied the permit
issuance criteria under section 10(a)(2)(B) of the ESA that would
otherwise apply if the unlisted species covered by the plan were
actually listed. For the Services to cover a species under a
conservation plan, it must be listed on the section 10(a)(1)(B) permit.
Changed circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan that can
reasonably be anticipated by plan developers and NMFS and that can be
planned for (e.g., the listing of new species, or a fire or other
natural catastrophic event in areas prone to such events).
Conserved habitat areas means areas explicitly designated for
habitat restoration, acquisition, protection, or other conservation
purposes under a conservation plan.
Conservation plan means the plan required by section 10(a)(2)(A) of
the ESA that an applicant must submit when applying for an incidental
take permit. Conservation plans also are known as ``habitat
conservation plans'' or ``HCPs.''
Operating conservation program means those conservation management
activities which are expressly agreed upon and described in a
conservation plan or its Implementing Agreement, if any, and which are
to be undertaken for the affected species when implementing an approved
conservation plan, including measures to respond to changed
circumstances.
Properly implemented conservation plan means any conservation plan,
Implementing Agreement and permit whose commitments and provisions have
been or are being fully implemented by the permittee.
Unforeseen circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan that could
not reasonably have been anticipated by plan developers and NMFS at the
time of the conservation plan's negotiation and development, and that
result in a substantial and adverse change in the status of the covered
species.
Sec. 222.22 [Amended]
7. In Sec. 222.22, paragraphs (g) and (h) are added.
* * * * *
(g) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (g) apply
only to incidental take permits issued in accordance with paragraph (c)
of this section where the conservation plan is being properly
implemented, and apply only with respect to species adequately covered
by the conservation plan. These assurances cannot be provided to
Federal agencies. This rule does not apply to incidental take permits
issued prior to March 25, 1998. The assurances provided in incidental
take permits issued prior to March 25, 1998 remain in effect, and those
permits will not be revised as a result of this rulemaking.
(1) Changed circumstances provided for in the plan. If additional
conservation and mitigation measures are deemed necessary to respond to
changed circumstances and were provided for in the plan's operating
conservation program, the permittee will implement the measures
specified in the plan.
(2) Changed circumstances not provided for in the plan. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and such measures were not provided
for in the plan's operating conservation program, NMFS will not require
any conservation and mitigation measures in addition to those provided
for in the plan without the consent of the permittee, provided the plan
is being properly implemented.
(3) Unforeseen circumstances. (i) In negotiating unforeseen
circumstances, NMFS will not require the commitment of additional land,
water, or financial compensation or additional restrictions on the use
of land, water, or other natural resources beyond the level otherwise
agreed upon for the species covered by the conservation plan without
the consent of the permittee.
(ii) If additional conservation and mitigation measures are deemed
necessary to respond to unforeseen circumstances, NMFS may require
additional measures of the permittee where the conservation plan is
being properly implemented, but only if such measures are limited to
modifications within conserved habitat areas, if any, or to the
conservation plan's operating conservation program for the affected
species, and maintain the original terms of the conservation plan to
the maximum extent possible. Additional conservation and mitigation
measures will not involve the commitment of additional land, water or
financial compensation or additional restrictions on the use of land,
water, or other natural resources otherwise available for development
or use under the original terms of the conservation plan without the
consent of the permittee.
(iii) NMFS will have the burden of demonstrating that unforeseen
circumstances exist, using the best scientific and commercial data
available. These findings must be clearly documented and based upon
reliable technical information regarding the status and habitat
requirements of the affected species. NMFS will
[[Page 8873]]
consider, but not be limited to, the following factors:
(A) Size of the current range of the affected species;
(B) Percentage of range adversely affected by the conservation
plan;
(C) Percentage of range conserved by the conservation plan;
(D) Ecological significance of that portion of the range affected
by the conservation plan;
(E) Level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the conservation
plan; and
(F) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
(h) Nothing in this rule will be construed to limit or constrain
the Assistant Administrator, any Federal, State, local, or tribal
government agency, or a private entity, from taking additional actions
at its own expense to protect or conserve a species included in a
conservation plan.
Dated: February 13, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
Dated: February 11, 1998.
Donald J. Barry,
Acting Assistant Secretary, Fish, Wildlife, and Parks, Department of
Interior.
[FR Doc. 98-4367 Filed 2-20-98; 8:45 am]
BILLING CODE 4310-55-P