[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Notices]
[Pages 32717-32726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15256]


      

  Federal Register / Vol. 64, No. 116 / Thursday, June 17, 1999 / 
Notices  

[[Page 32717]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Announcement of Final Safe Harbor Policy

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

ACTION: Announcement of final policy.

-----------------------------------------------------------------------

SUMMARY: The Fish and Wildlife Service (FWS) and the National Marine 
Fisheries Service (NMFS), (jointly referred to as the ``Services'') 
announce a final Safe Harbor policy under the Endangered Species Act of 
1973, as amended (Act). This policy provides incentives for private and 
other non-Federal property owners to restore, enhance, or maintain 
habitats for listed species. Because many endangered and threatened 
species occur exclusively, or to a large extent, on non-Federally owned 
property, the involvement of non-Federal property owners in the 
conservation and recovery of listed species is critical to the eventual 
success of these efforts. Under the policy, the Services will provide 
participating property owners with technical assistance to develop Safe 
Harbor Agreements (Agreements) that manage habitat for listed species, 
and provide assurances that additional land, water, and/or natural 
resource use restrictions will not be imposed as a result of their 
voluntary conservation actions to benefit covered species. When the 
property owner meets all the terms of the Agreement, the Services will 
authorize incidental taking of the covered species at a level that 
enables the property owner ultimately to return the enrolled property 
back to agreed upon baseline conditions. The Services will closely 
coordinate with the appropriate State agencies and any affected Native 
American Tribal governments before entering into Agreements. The 
Services considered and evaluated all the comments received on the 
draft policy in developing this final policy. Additionally, the FWS is 
publishing elsewhere in this issue of the Federal Register a final rule 
that contains the necessary regulatory changes to implement this 
policy.

DATES: This policy is effective July 19, 1999.

ADDRESSES: To obtain copies of the final Safe Harbor policy contact the 
Chief, Division of Endangered Species, Fish and Wildlife Service, 452 
ARLSQ, Washington, D.C. 20240 (Telephone 703/358-2171, Facsimile 703/
358-1735); or Chief, Endangered Species Division, National Marine 
Fisheries Service, Office of Protected Resources, 1315 East-West 
Highway, Silver Spring, MD, 20910 (Telephone 301/713-1401, Facsimile 
301/713-0376).

FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division 
of Endangered Species, Fish and Wildlife Service (Telephone (703)358-
2171) or Margaret Lorenz, Policy Coordinator, Endangered Species 
Division, National Marine Fisheries Service (Telephone (301) 713-1401).

SUPPLEMENTARY INFORMATION:

Background

    On June 12, 1997, the Services issued a draft policy (62 FR 32178), 
and the FWS issued proposed regulations to implement the policy (62 FR 
32189). With this policy, the Services intended to facilitate the 
conservation of listed species through a collaborative approach with 
non-Federal citizens, States, local governments, Tribes, businesses, 
organizations, and other non-Federal property owners which are 
stakeholders in the conservation of these species. With the proposed 
policy and the related regulations, the Services intended to create 
incentives for non-Federal property owners to implement conservation 
measures for certain listed species by providing certainty with regard 
to possible future land, water, or resource use restrictions should the 
covered species later become more numerous as a result of the property 
owners actions. Non-Federal property owners, who through a Safe Harbor 
Agreement commit to implement voluntary conservation measures for a 
listed species will receive assurances from the Services that 
additional conservation measures will not be required and additional 
land, water, or resource use restrictions will not be imposed should 
the covered species become more numerous as a result of the property 
owners' actions.
    Much of the nation's current and potential fish and wildlife 
habitat is on property owned by private citizens, States, 
municipalities, Tribal governments, and other non-Federal entities. 
Conservation efforts on non-Federal property are critical to the 
survival and recovery of many endangered and threatened species. The 
Services strongly believe that a collaborative stewardship approach to 
the proactive management of listed species involving government 
agencies (Federal, State, and local) and the private sector is critical 
to achieving the ultimate goal of the Endangered Species Act (Act): 
recovery of threatened and endangered species. The recovery of certain 
species can benefit from short-term and mid-term enhancement, 
restoration, or maintenance of terrestrial and aquatic habitats on non-
Federal property. The ``Safe Harbor'' approach provides an avenue to 
garner the non-Federal landowners' support for species conservation on 
non-Federal lands.
    Many property owners are willing to voluntarily manage their 
property to benefit listed fish and wildlife, provided these beneficial 
actions do not result in new restrictions being placed on the future 
use of their property. Beneficial management includes actions to 
enhance, restore, or maintain habitat (e.g., restoring habitat through 
prescribed burning, restoring hydrological conditions) so that it is 
suitable for listed species. Because such proactive management actions 
cannot be mandated or required by the Act, failure to conduct these 
activities would not violate any of the Act's provisions. Although 
property owners recognize the benefits of proactive habitat 
conservation activities to help listed species, some are still 
concerned that additional land, water, and/or natural resource use 
restrictions may result if listed species colonize their property or 
increase in numbers or distribution due to their conservation efforts. 
Their concern centers on the applicability of the Act's section 9 
``take'' prohibitions if listed species occupy their property, as a 
result of their conservation-oriented property management actions. 
Landowners whose properties support endangered or threatened species as 
a result of their positive, voluntary conservation efforts might 
violate section 9 of the Act if they significantly develop, modify, or 
manage those properties in a way that subsequently causes incidental 
take of those species.
    Section 9 of the Act prohibits the ``take'' of listed fish and 
wildlife species, which is defined in section 3(18) to include, among 
other things, killing, harming or harassing. The Act's implementing 
regulations, as promulgated by the FWS (50 CFR 17.3), and proposed by 
NMFS (63 FR 24148) define ``harm'' to include ``significant habitat 
modification or degradation where it actually kills or injures wildlife 
by significantly impairing essential behavioral patterns, including 
breeding, feeding and sheltering.''
    This final Safe Harbor policy encourages property owners to 
voluntarily conserve threatened and endangered species without the risk 
of

[[Page 32718]]

further restrictions pursuant to section 9 of the Act. Previously, the 
FWS has provided Safe Harbor type assurances to non-Federal property 
owners based on various authorities under the Act, including incidental 
take statements under section 7(a)(2) and incidental take permits under 
section 10(a)(1)(B). After further consideration of such alternatives 
and an evaluation of other provisions of the Act, the Services have 
determined that the section 10(a)(1)(A) ``enhancement of survival'' 
permit provisions provide the best mechanism to carry out a permanent 
Safe Harbor policy that provides the necessary assurances to 
participating property owners, while also providing conservation 
benefits to the covered species. For landowners who are participants in 
other Federal programs (e.g., Farm Bill or Partners for Fish and 
Wildlife programs), FWS is in the process of developing an appropriate 
process to provide assurances on a programmatic basis to the landowners 
as long as a net conservation benefit is achieved for listed species 
covered by the Agreements. Assurances already provided by FWS under 
sections 7 or 10(a)(1)(B) would still be valid, and revision of those 
Agreements is unnecessary. Finalizing this policy provides national 
consistency in the development of Safe Harbor Agreements (Agreements) 
and links the policy to an expanded ``enhancement of survival'' permit 
program through section 10(a)(1)(A) of the Act.
    FWS has also published final regulations to implement this policy 
in today's Federal Register. This final policy and final rule provides 
the FWS procedures to implement the Safe Harbor policy. NMFS will 
develop and propose regulatory changes to implement this policy at a 
later date. These regulations will govern the issuance of ``enhancement 
of survival'' permits under section 10(a) (1)(A) of the Act to provide 
the assurances to participating landowners through Safe Harbor 
Agreements.

Summary of the Draft Policy

    The draft Safe Harbor policy (62 FR 32178) encouraged non-Federal 
landowners to maintain or enhance existing endangered species habitat, 
to restore listed species' habitats, or to manage their lands in a 
manner that benefits listed species that would be covered by an 
agreement. In return, the Services would provide assurances that future 
activities would not be subject to the Act's restrictions beyond those 
restrictions applicable to the property at the time of enrollment in 
the program. The draft policy recognized that many non-Federal 
landowners are interested in restoring, enhancing, and/or maintaining 
natural habitats on their lands, thus potentially benefiting listed 
species. However, non-Federal landowners' willingness may be hindered 
by a fear that the Services will enforce section 9 due to their 
beneficial actions, their lands are colonized by listed species, or 
listed species' numbers increase.
    The draft policy contained provisions protecting any listed species 
covered by an Agreement and occupying a landowner's property at the 
time of enrollment in the program by including them in the baseline 
conditions. If species were included in the baseline conditions, an 
``incidental take'' would not be allowed. However, if the numbers or 
range of those covered species increases because of voluntary 
conservation measures conducted in accordance with a Safe Harbor 
Agreement, the landowner would be authorized to incidentally ``take'' 
those individuals above the baseline without penalty. These 
arrangements would be formalized through a streamlined permitting 
process and an Agreement or similar instrument between the landowner 
and the Services. The draft policy also considered a streamlined 
process where the Services would issue a blanket permit to an 
appropriate agency or organization that would in turn issue 
``Certificates of Inclusion'' or ``Participation Certificates'' to 
landowners. The ultimate goal of the draft policy was to encourage non-
Federal landowners to voluntarily implement beneficial management 
actions for those listed species that occur on their lands or would be 
attracted as a result of the beneficial management actions.

Summary of Comments Received

    The Services received more than 70 comment letters on the draft 
policy from a wide variety of entities, including Federal, State and 
County agencies, industry, conservation groups, coalitions, and private 
individuals. The Services considered all relevant information and 
recommendations received during the public comment period. Some of the 
commenters addressed issues that were applicable to the implementing 
regulations as well as the draft policy. Both the final policy and 
regulations have been amended, where appropriate.
    The following is a summary of the comments on the draft policy and 
the Services' responses.
    Issue 1. Many commenters expressed concern regarding the 
appropriateness of the Services entering into Safe Harbor Agreements 
and suggested that the Services provide guidance on how to determine 
whether a Safe Harbor Agreement is appropriate and under what 
circumstances the Services would enter into such Agreements.
    Response 1. The Services agree that Safe Harbor Agreements may not 
be appropriate for all types of species in all situations. If a 
property owner is taking a listed species and needs an immediate 
``incidental take'' authorization, application for and development of a 
Habitat Conservation Plan (HCP) and issuance of an incidental take 
permit under section 10(a)(1)(B) would be more appropriate. Safe Harbor 
Agreements also are not appropriate in situations that do not meet the 
net conservation benefit standards of this policy. The Services will 
determine on a case-by-case basis whether or not a particular proposed 
Agreement actually meets the standards of the Safe Harbor policy and 
its implementing regulations and whether a Safe Harbor Agreement would 
be an appropriate means of enhancing the survival of the species 
covered by an agreement. For example, translocating individuals from a 
habitat preserved in perpetuity to a site with zero baseline condition 
may not achieve a net conservation benefit for the species. This is 
because the habitat the species is using could be altered or destroyed, 
which would put the species at risk. Each Agreement will have an 
appropriate public review and comment period, and after considering all 
available information, the Services will determine if the permit can be 
issued.
    Issue 2. Commenters stated that the concept of baseline and how 
baseline conditions will be determined needs to be clarified. Some 
commenters also provided recommendations on how to determine baseline 
conditions.
    Response 2. The Services acknowledge that the concept of baseline 
determination needs further clarification, and because of its crucial 
importance to the overall implementation and success of this policy, 
the discussion of this concept is expanded. The Services also further 
clarify how baseline conditions should be determined, the intent of the 
Services in determining baseline conditions, and the implications of 
these determinations. The intent of the Services in determining 
baseline conditions is to ensure that the protection provided to 
covered listed species is not eroded below current levels. The intent 
is to provide participating landowners with a clear understanding of 
their assured rights to return enrolled lands to conditions existing 
prior to the Agreement (i.e.,

[[Page 32719]]

baseline conditions) and what expectations exist for all participants 
in terms of performance under the Agreement.
    Issue 3. Numerous commenters raised concerns regarding the 
determination of baseline conditions based on the number of individuals 
of a listed species occupying or using the enrolled lands. These 
concerns are based on the fact that population numbers of a species in 
the wild often fluctuate naturally (e.g., between years and between 
seasons). If, for example, the baseline was established as the number 
of individual animals present during a period of naturally high 
abundance, a participating landowner could be interpreted to be in non-
compliance with the Agreement if they returned the enrolled lands to 
baseline when population numbers were naturally low, when in fact the 
available habitat area remained unchanged and the landowner took no 
action that violated the Agreement.
    Response 3. The Services intend to provide flexibility during 
implementation of the policy by providing that baseline conditions will 
be mutually agreed upon by the participating landowner and the 
Services, and will be determined by using either population numbers of 
listed species or occupied habitat acreage, or both. The known or 
expected seasonal or natural variation of population numbers should be 
described in the Agreement and will help form the baseline 
determination of the enrolled lands. Similarly, if occupied habitat is 
used to determine baseline, the quality, acreage, and characteristics 
of the habitat sustaining individuals of the covered species within the 
enrolled lands will be described and evaluated. The policy has been 
amended to address these concerns and to further clarify the section 
discussing baseline.
    Issue 4. A number of commenters expressed concern regarding the 
land, water, and/or natural resource use that the enrolled lands would 
be returned to after the Agreement expires. Commenters were concerned 
whether such use would be compatible with maintaining the baseline 
conditions.
    Response 4. Landowners who have complied with the terms of the 
Agreements and wish to use their lands in a manner different from their 
original use certainly retain the right to do so without any additional 
restrictions under the Act as long as the baseline is maintained. 
However, if the proposed use of the enrolled lands would result in 
incidental take of the species and is inconsistent with maintaining the 
baseline conditions, then separate authorization for such take would be 
required and is not covered by the Safe Harbor Agreement. In other 
words, the same land, water, and/or natural resource use restrictions 
that applied to the property prior to the Safe Harbor Agreement would 
still apply and the landowner would have to obtain the appropriate 
incidental take authorization under the appropriate provisions of the 
Act. If the baseline conditions were zero, based on the existence of 
unoccupied habitat, and these habitat areas became occupied as a result 
of the activities undertaken under the Agreement, no further 
authorization would be required. However, the Services would work with 
the landowner to relocate the species, if appropriate, before any 
habitat modification back to the baseline occurs, or extend the 
Agreement if the landowner so desires.
    Issue 5. Numerous commenters supported the ``net conservation 
benefit'' standard in the policy. Commenters had significantly 
different interpretations of the meaning of ``net conservation 
benefit,'' however, and many requested further clarification of the 
concept.
    Response 5. This crucial and fundamental principle of the Safe 
Harbor policy caused confusion and a number of different 
interpretations. Therefore, this section of the policy has been revised 
to clarify the Services' intent and the ``net conservation benefit'' 
concept. These net conservation benefits may result from reducing 
fragmentation and increasing the connectivity of habitats, maintaining 
or increasing populations, insuring against catastrophic events, 
enhancing and restoring habitats, buffering protected areas, and 
creating areas for testing and implementing new conservation 
strategies.
    Issue 6. Several commenters requested clarification on how the 
Agreements can be terminated and what were the rights and 
responsibilities of the participating landowner.
    Response 6. The length of Safe Harbor Agreements must be of 
sufficient duration to reasonably allow enough time to achieve the 
expected ``net conservation benefit'' for the listed species covered by 
the Safe Harbor Agreement. For example, if restoring suitable habitat 
for a species normally takes five years of active management, and the 
proposed Agreement is limited to providing suitable habitat for only 
three years, it would not be appropriate to enter into this Agreement. 
However, since these Agreements are voluntary, the Services recognize 
and respect the landowners' right to request early termination of their 
Agreements. The final Safe Harbor policy provides a mechanism to allow 
landowners to terminate their voluntary Agreements before the 
expiration date. The Services expect the number of landowners 
requesting early termination to be minimal based on the FWS's 
experience with the Partners for Fish and Wildlife Program.
    Issue 7. Many commenters expressed concern that the proposed 
process for developing Agreements and issuing the necessary permit to 
provide the Safe Harbor assurances would be too cumbersome. Some 
commenters also suggested the Services should consider a ``blanket,'' 
``master,'' or ``programmatic'' permitting process to further 
streamline the development of Safe Harbor Agreements.
    Response 7. The process established in the draft Safe Harbor policy 
and implementing regulations was basically intended to address 
situations where a single landowner approaches the Services and is 
willing to conduct beneficial management actions on behalf of listed 
species, but is concerned regarding potential future section 9 
limitations that could result from these voluntary actions. The draft 
Safe Harbor policy did not explicitly discuss the potential for using 
``blanket,'' ``master,'' or ``programmatic'' permits to provide 
assurances to landowners interested in managing habitat for listed 
species on their property. However, the FWS has used a section 
10(a)(1)(B) ``programmatic'' permit very successfully in the last few 
years. Clarifying language has been added to the final Safe Harbor 
policy and implementing regulations to allow for the possibility of 
using ``programmatic'' permits whenever appropriate. For example, the 
development of Statewide Safe Harbor programs, where a State agency or 
an appropriate entity acts as a permit holder and has the authority to 
include individual landowners through the issuance of ``Certificates of 
Inclusion'' or ``Participation Certificates,'' provides the perfect 
circumstance for the use of ``programmatic'' Safe Harbor Agreements and 
associated enhancement of survival permits. In the final policy, the 
Services recognize that significant conservation benefits on a 
landscape scale can be provided through these ``programmatic'' Safe 
Harbor Agreements and associated permits.
    Issue 8. Several commenters expressed concern about the effects 
actions taken on enrolled lands may

[[Page 32720]]

have on neighboring non-enrolled lands and expressed the need for 
clarification.
    Response 8. The Services recognize the implications to neighboring 
landowners of the successful implementation of management actions on 
enrolled lands. Further, the Services recognize and acknowledge that 
some landowners may be reluctant to initiate management actions that 
may have land, water, and/or natural resource use implications to 
neighboring landowners. The implications to neighboring landowners with 
non-enrolled lands will be assessed on a case-by-case basis. For 
example, when the Services believe that occupation of non-enrolled 
neighboring lands is likely, the Services will make every effort to 
include the neighboring landowner as a signatory party to the Agreement 
and to be included in the Safe Harbor Agreement and associated permit, 
thus extending the Safe Harbor assurances. For example, neighboring 
landowners of aplomado falcon (Falco femoralis) release sites in Texas 
were included in the permit for the Safe Harbor Agreement, in case 
that, as a result of the cooperators' actions, falcons inhabit their 
lands.
    Issue 9. A number of commenters requested further clarification of 
the applicability of future section 7 consultations for Federal actions 
affecting the enrolled properties.
    Response 9. Section 7 would continue to apply to Federal actions 
affecting the enrolled properties. However, if a participating 
landowner subsequently proposed an activity that required Federal 
approval (e.g., CWA section 404 permit) within the enrolled lands and 
such activity would not alter the status of the covered listed species 
below the original baseline conditions, as long as the activity does 
not diminish the baseline conditions, it is not likely that the species 
will be jeopardized. The ``no-jeopardy'' conclusion would be reached 
because the affected individuals of the species covered by the 
Agreement would be the same authorized to be taken under the Safe 
Harbor Agreement which the Services would already have found were 
``takes'' that would not result in jeopardy under the issued section 
10(a)(1)(A) permit. Furthermore, it will be the policy of the Services 
to include in the Biological Opinion ``reasonable and prudent 
measures'' necessary to minimize the expected incidental take which are 
identical to the terms and conditions included in the Safe Harbor 
Agreement and associated enhancement of survival permit issued to the 
participating landowner. Some commenters expressed concern regarding 
proposed Federal actions within the enrolled lands that are not 
initiated by the participating landowner (e.g., highway construction 
through condemnation of enrolled lands). Under these circumstances, 
normal section 7 compliance and procedures would apply and the 
necessary alternatives or measures to comply with section 7 may not be 
the same as those included in the Safe Harbor Agreement, regardless of 
whether take of covered species moves them below baseline.
    Issue 10. Many commenters expressed concerns regarding the 
confidentiality of the information generated as a result of entering 
into these Agreements and the standards that this information will be 
subjected to before making decisions. Most commenters requested a 
commitment from the Services to keep all information regarding the 
development of Safe Harbor Agreements confidential.
    Response 10. The Services recognize the landowners' concerns 
regarding privacy related to management actions they plan to implement 
on their lands and their desires to guard information regarding 
occupancy of listed species on their lands. However, the Act and its 
implementing regulations require an open and public process whenever 
permits are issued. Furthermore, the Services' implementation guidance 
and policy are to encourage an open process. Information used to make 
determinations for section 10 (a)(1)(A) permit issuance must be 
available for public review and comment. The Services are committed to 
ensuring an open and public approach to the implementation of this 
program.
    Issue 11. A number of commenters felt that the draft policy should 
address how enrolled lands will be counted toward achieving recovery 
and the appropriateness of counting individuals covered under Safe 
Harbor Agreements toward recovery goals.
    Response 11. Before entering into any Safe Harbor Agreement, the 
Services must make a written finding that all covered species would 
receive a net conservation benefit from management actions undertaken 
pursuant to the Agreement. Net conservation benefits contribute, 
directly or indirectly, to the recovery of the covered species, but 
this contribution toward recovery may be of varying duration and not 
permanent in nature, and the Services will not rely on these benefits 
by themselves as the basis to delist any species. Cumulatively, 
conservation benefits from Safe Harbor Agreements are likely to 
contribute to the recovery of a species over time by providing 
incentives to improve habitat or increase population numbers; reduce 
the effects of catastrophic events; provide buffers for protected 
areas; and establish areas for testing and developing new and 
innovative conservation strategies. Nevertheless, it would not be 
prudent to base delisting decisions solely on conservation benefits 
provided through Safe Harbor Agreements because of the ultimate right 
of a participating landowner to return their property to its original 
baseline condition.
    Issue 12. Many commenters requested clarification and expressed 
concerns regarding the appropriateness of including unlisted species in 
these Agreements.
    Response 12. Concurrently with this policy, the Services are 
publishing in the Federal Register of June 17, 1999, the final policy 
on Candidate Conservation Agreements with Assurances, which provides 
the opportunity to take action on behalf of declining species before 
listing becomes necessary. The Services acknowledge that situations may 
arise where a property owner may want to conserve numerous species, 
both listed and unlisted, on their property, and may want to enter into 
both a Safe Harbor and Candidate Conservation Agreement. The Services 
are considering methods to streamline and combine these two processes.
    Issue 13. Many commenters stated that there was a need for 
monitoring standards and that the Services must ensure monitoring of 
Agreements.
    Response 13. The Services recognize the need to develop and 
implement appropriate monitoring programs for the Safe Harbor Agreement 
to ensure that the ``net conservation benefits'' are being achieved. 
The monitoring of the implementation of the Safe Harbor Agreement will 
be part of the process to learn about the effectiveness of various 
conservation techniques and to ensure that the status of the species is 
not reduced below the original baseline condition. The scale and 
complexity of the Agreement may determine what additional monitoring is 
needed. However, monitoring standards are more appropriately generated 
in implementation guidance, which the Services are committed to 
developing in the near future with public review and comment. However, 
it is appropriate to include in the Safe Harbor policy certain guiding 
principles on the issue of monitoring and to provide general interim 
guidelines and the conceptual basis for the development of monitoring 
provisions.
    Issue 14. Several commenters suggested that tax and financial 
incentives should be offered as part of

[[Page 32721]]

the regulatory assurances included in the draft policy.
    Response 14. The Services agree that tax incentives or financial 
payments would also be effective in furthering voluntary actions by 
non-Federal landowners and would help defray the costs of implementing 
some of the necessary management activities. However, the Services do 
not have the authority to provide tax incentives without an express 
authorization from Congress. The Services' Ten Point-Plan for the fair 
implementation of the Act included a recommendation to Congress on 
these types of incentives as a way to garner additional support for 
voluntary management actions to benefit listed species. In addition, in 
fiscal year 1999, the FWS will initiate a pilot grant program to help 
provide some limited funding to participating landowners for the 
implementation of management activities under the auspices of signed 
Safe Harbor Agreements.
    Issue 15. A few commenters requested further clarification 
regarding the need for National Environmental Policy Act (NEPA) 
compliance in terms of implementing the Safe Harbor program.
    Response 15. The Services agree that NEPA compliance is necessary 
for the implementation of the Safe Harbor program. However, the 
Services expect that Safe Harbor Agreements/permits will provide 
benefits to covered listed species and their habitats and would have 
minor or no effects on other environmental values or resources. Because 
these permits can result in incidental take of individuals and/or 
habitats that would not exist but for these Agreements, and because 
current baseline conditions will be maintained under these Agreements, 
the Services expect that activities conducted within the Safe Harbor 
program would qualify for a categorical exclusion. Regardless of NEPA 
public review provisions, the Act's regulations to implement Safe 
Harbor Agreements and permits impose specific public review and comment 
requirements. For large-scale agreements that may encompass an entire 
State or a significant portion of the covered listed species' range, 
the Services are committed to preparing the necessary NEPA 
documentation.
    Issue 16. A number of commenters inquired about the status of the 
necessary implementing regulations for the National Marine Fisheries 
Service.
    Response 16. NMFS expects to amend its section 10(a)(1)(A) 
regulations to accommodate Safe Harbor Agreements in the next few 
months. Currently, NMFS does not have any approved Safe Harbor 
agreements and none are under consideration. However, we welcome 
inquiries on possible Agreements which would further the protection of 
listed species under NMFS' jurisdiction. The lack of revised 
10(a)(1)(A) regulations should not discourage landowners from seeking 
an agreement with NMFS.
    Issue 17. A number of commenters inquired about the interrelation, 
if any, between the Safe Harbor program and other Federal habitat 
restoration efforts and programs (e.g., Farm Bill related programs).
    Response 17. The Services recognize that it would be beneficial if 
other Federal wildlife habitat restoration and/or enhancement programs 
also were able to provide Safe Harbor type assurances. Currently, the 
Services are exploring streamlined processes to provide Safe Harbor 
type assurances to non-Federal participants of these programs, some of 
which are implemented by other agencies of the Federal government 
(e.g., Farm Bill programs run by the Natural Resources Conservation 
Service). The Services are exploring potential possibilities to provide 
these Safe Harbor type assurances to the private landowners that 
participate in the Federal programs as long as the affirmative 
conservation mandates of Federal agencies are met.
    Issue 18. Several commenters requested further clarification as to 
the duration of the assurances provided under the Safe Harbor program.
    Response 18. In general, the assurances provided under the Safe 
Harbor program ``run with the land'' as long as the permit is effective 
and as long as the participating landowner is implementing the agreed 
upon terms of the Agreement and permit. The Services intend that the 
assurances will continue even after the ``net conservation benefit'' 
standard has been achieved, thus encouraging the landowner to maintain 
the benefits of the management actions and refrain from returning the 
land to baseline conditions at the end of the Agreement. If subsequent 
owners of the land are willing to sign a new Agreement, continue 
necessary management actions, and maintain the baseline once the net 
conservation benefit has been achieved, the assurances will continue. A 
permit that ``runs with the land'' provides the participating landowner 
(or subsequent landowner) with the option of not immediately returning 
his or her property back to its original baseline conditions. 
Clarifying language has been included in the final policy.
    However, the Services are prepared as a last resort to revoke a 
permit implementing a Safe Harbor Agreement where continuation of the 
permitted activity would be likely to result in jeopardy to a species 
covered by the permit, although the Services would first have to 
exercise all possible means to remedy such a situation prior to taking 
such a step.

Revisions to the Draft Policy

    The following represents a summary of the revisions to the proposed 
policy as a result of the consideration of the public comments.
    (1) The Services clarified how baseline should be determined and 
the implications of these determinations.
    (2) The Services clarified the ``net conservation benefit'' 
language to indicate that the benefits should be reasonably expected to 
occur during the Agreement.
    (3) The final Safe Harbor policy provides a mechanism to allow 
landowners to terminate their voluntary Agreements before the 
expiration date.
    (4) The final Safe Harbor policy and implementing regulations 
establishes specific public review periods.
    (5) The Services have clarified in the final policy how Safe Harbor 
Agreements are to be treated in determining the recovery of a listed 
species covered by such Agreements.
    (6) The Services included in the final policy general interim 
guidelines regarding monitoring provisions for Safe Harbor Agreements.
    (7) The Services clarified how they will address neighboring 
property owners to non-Federal property owners who receive Safe Harbor 
assurances.

Final Safe Harbor Policy

Part 1. What Is the Purpose of the Policy?

    Because many endangered and threatened species occur exclusively, 
or to a large extent, upon privately owned property, the involvement of 
the private sector in the conservation and recovery of species is 
critical to the eventual success of these efforts. Private property 
owners are often willing to be partners in the conservation and 
recovery of listed fish, wildlife, and plant species and their 
habitats. However, they often may be reluctant to undertake proactive 
activities that increase the likelihood of use of their properties by 
endangered and threatened species due to their fear of future 
additional property-use restrictions. Safe Harbor Agreements are a 
means of providing incentives to property owners to restore, enhance, 
or maintain habitats and/or populations of listed species that result 
in a net conservation benefit to these species. Although such 
Agreements may not permanently conserve or recover such populations or 
their habitats, they

[[Page 32722]]

nevertheless offer important short-term, mid-term, and, in some cases, 
long-term net conservation benefits. These net conservation benefits 
may result from reducing fragmentation of habitats, increasing the 
connectivity of habitats, maintaining or increasing populations, 
insuring against catastrophic events, enhancing and restoring habitats, 
buffering protected areas, and creating areas for testing and 
implementing new conservation strategies.
    The purpose of this policy is to ensure consistency in the 
development of Safe Harbor Agreements. Safe Harbor Agreements encourage 
proactive species' conservation efforts by private and other non-
Federal property owners while providing certainty relative to future 
property-use restrictions, even if these efforts attract listed species 
onto enrolled properties or increase the numbers or distribution of 
listed species already present on their properties. These voluntary 
Agreements will be developed between either Service, or the Services 
jointly, and private and other non-Federal property owners. The 
Services will closely coordinate development of these Agreements with 
the appropriate State fish and wildlife or other agencies and any 
affected Tribal governments. Collaborative stewardship with State fish 
and wildlife agencies is particularly important given the partnerships 
that exist between the States and the Services in recovering listed 
species. Approved Safe Harbor Agreements will be covered under a new 
category of ``enhancement of survival'' permits issued under section 
10(a)(1)(A) of the Act.
    Safe Harbor Agreements may be initiated by property owners, or the 
Services may take the initiative on their own or in concert with other 
Federal or State agencies to encourage property owners to voluntarily 
enter into Safe Harbor Agreements for a given area, particularly when 
many non-Federal parcels of property are involved. The Services will 
work with the participating landowner to develop an ``enhancement of 
survival'' permit application and the Safe Harbor Agreement. The 
Services will assist landowners in identifying actions that the 
landowners will voluntarily undertake or forego to provide a net 
conservation benefit to the listed species to be covered by the 
Agreement.
    Development of an ``enhancement of survival'' section 10(a)(1)(A) 
permit application and an adequate Safe Harbor Agreement are 
intricately linked. All parties to the Agreement will coordinate the 
development of the Agreement to ensure that the measures included in 
the Agreement and permit are consistent.
    The Services recognize that Safe Harbor Agreements are not 
appropriate under all circumstances. In particular, where the land or 
water is occupied by a listed species and the property owner seeks 
immediate ``incidental take'' authorization, application for and 
development of a Habitat Conservation Plan (HCP) and issuance of an 
incidental take permit under section 10(a)(1)(B) is the appropriate 
tool. Also, an Agreement is not appropriate in situations that do not 
meet the net conservation benefit standards of this policy. For 
example, if the Services can reasonably anticipate that a proposed 
Agreement would only redistribute the existing population of a listed 
species or attract a species away from a habitat that has provided 
long-term protection to a habitat without such protection, the Services 
would not enter into an Agreement. Also, if a species is so depleted or 
its habitat so degraded that considerable improvement over baseline 
conditions is necessary to result in a net conservation benefit, an 
Agreement may not be appropriate. For certain aquatic, riverine, and/or 
riparian species it may be too difficult to reach a net conservation 
benefit since returning to the baseline conditions could have serious 
negative effects that would negate or outweigh the benefits achieved 
through the Agreement.
    Availability of resources will also be a governing factor for the 
Services. While the Services expect the interest in Safe Harbor 
Agreements and the demand for technical assistance to property owners 
to increase, Safe Harbor Agreements are developed by FWS using limited 
funds appropriated for recovery activities. Therefore, the Services 
will focus on potential Agreements that provide the greatest 
contribution to the recovery of multiple listed species. Another factor 
will be whether there is sufficient information to develop sound 
conservation measures. The Services will work with State, Tribal, and 
other interested parties to develop information on species' 
conservation requirements that have not been adequately documented in 
the scientific literature.

Part 2. What Definitions Apply to This Policy?

    The following definitions apply for the purposes of this policy.
    ``Baseline conditions'' means population estimates and distribution 
and/or habitat characteristics and determined area of the enrolled 
property that sustain seasonal or permanent use by the covered species 
at the time the Safe Harbor Agreement is executed between the Services 
and the property owner.
    ``Covered species'' means a species of fish or wildlife that is the 
subject of a Safe Harbor Agreement. Covered species are limited to 
species that are Federally listed as endangered or threatened and are 
included in the Safe Harbor Agreement and accompanying enhancement of 
survival permit.
    ``Enhancement of survival permit'' means a permit issued under the 
authority of section 10(a)(1)(A) of the Act.
    ``Enrolled property'' means all private or non-Federal property, 
waters, or natural resources to which the assurances in a Safe Harbor 
Agreement apply and on which incidental taking is authorized under the 
enhancement of survival permit.
    ``Management activities'' are voluntary conservation actions to be 
undertaken by a property owner that the Services believe will benefit 
the covered species.
    ``Net conservation benefit'' means the cumulative benefits of the 
management activities identified in a Safe Harbor Agreement that 
provide for an increase in a species' population and/or the 
enhancement, restoration, or maintenance of covered species' suitable 
habitat within the enrolled property, taking into account the length of 
the Agreement and any off-setting adverse effects attributable to the 
incidental taking allowed by the enhancement of survival permit. Net 
conservation benefits must be sufficient to contribute, either directly 
or indirectly, to the recovery of the covered species.
    ``Non-Federal property owner'' includes, but is not limited to, 
private individuals, organizations, businesses, State, local, and 
Tribal governments, and other non-Federal entities who own the enrolled 
property. Federal agencies can be involved in the development of Safe 
Harbor Agreements, but will not receive the same assurances provided 
through these Agreements as non-Federal property owners.
    ``Safe Harbor Agreement'' means an Agreement signed by the Services 
and a property owner and any other cooperator, such as the holder of a 
``programmatic'' permit, if appropriate, that (a) sets forth specific 
management activities that the private or non-Federal property owner 
will voluntarily undertake or forgo that will provide a net 
conservation benefit to covered species and (b) provides the property 
owner with the Safe Harbor assurances described within the Agreement 
and

[[Page 32723]]

authorized in the enhancement of survival permit.
    ``Safe Harbor Assurances'' are assurances provided by the Services 
to a non-Federal property owner in the Agreement and authorized in the 
enhancement of survival permit for covered species. These assurances 
allow the property owner to alter or modify enrolled property, even if 
such alteration or modification results in the incidental take of a 
listed species to such an extent that it returned the species back to 
the originally agreed upon baseline conditions. Such assurances may 
apply to whole parcels or portions of the owner's property as 
designated in the Agreement. These assurances depend on the property 
owner complying with obligations in the Agreement and in the 
enhancement of survival permit.

Part 3. How Is the Cooperation and Coordination With the States and 
Tribes Described in the Policy?

    Coordination with the appropriate State agencies and any affected 
Tribal governments is important to the success of Safe Harbor 
Agreements. Coordination allows the special local knowledge of all 
affected entities to be considered in the development of the 
Agreements. The Services will work closely with State agencies on 
matters involving the distribution of materials describing the Safe 
Harbor Agreement policies and programs, the determination of acceptable 
baseline conditions, and development of appropriate monitoring efforts. 
Because of the Services' trust responsibilities, the Services will also 
closely coordinate and consult with any affected Tribal government that 
has a treaty right to any fish or wildlife resources covered by a Safe 
Harbor Agreement.

Part 4. What Is Species Net Conservation Benefit From Safe Harbor 
Agreements?

    Before entering into any Safe Harbor Agreement, the Services must 
make a written finding that all covered species will receive a net 
conservation benefit from management actions undertaken pursuant to the 
Agreement. The finding must clearly describe the expected net 
conservation benefits and how the Services reached that conclusion. Net 
conservation benefits must contribute, directly or indirectly, to the 
recovery of the covered species. This contribution toward recovery will 
vary and may not be permanent. The Services will not rely solely on 
these benefits as the basis to delist any species. A Safe Harbor 
Agreement does not have to provide permanent conservation for enrolled 
property; however, Agreements must be sufficient to provide a net 
conservation benefit to all covered listed species, thereby 
contributing to the recovery of such species over time.
    Conservation benefits from Safe Harbor Agreements include, but are 
not limited to, reduction of habitat fragmentation rates; the 
maintenance, restoration, or enhancement of habitats; increase in 
habitat connectivity; maintenance or increase of population numbers or 
distribution; reduction of the effects of catastrophic events; 
establishment of buffers for protected areas; and establishment of 
areas to test and develop new and innovative conservation strategies. 
The Services believe a ``net conservation benefit'' test is necessary 
to justify the issuance of an enhancement of survival permit under 
section 10(a)(1)(A) of the Act. The contribution to the recovery of 
listed species by Safe Harbor Agreements must be evaluated carefully, 
since realized benefits from these Agreements will be affected by the 
duration of the Agreement, among other things.

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

    A non-Federal property owner may obtain an enhancement of survival 
permit under section 10 (a)(1()A) of the Act to incidentally take a 
covered species above the agreed upon baseline conditions of the Safe 
Harbor Agreement, if the Agreement satisfies the following 
requirements:
    The Agreement must--
    (1) Specify the species and/or habitats covered, including the 
habitat conditions, and identify the enrolled property covered by the 
Agreement;
    (2) Include a full description of the agreed upon baseline 
conditions for each of the covered species within the enrolled 
property;
    (3) Identify management actions that would be undertaken to 
accomplish the expected net conservation benefits to the species, where 
and when the benefits would be achieved, and the agreed upon time 
frames these management actions will remain in effect to achieve the 
anticipated net conservation benefits;
    (4) Describe any incidental take associated with the management 
actions during the term of the Agreement;
    (5) If appropriate, incorporate a notification requirement to 
provide the Services or appropriate State agencies with a reasonable 
opportunity to rescue individuals of a covered species before any 
authorized incidental taking occurs;
    (6) Describe what activities would be expected to return the 
enrolled property to baseline conditions and the extent of incidental 
take that would likely result from such activities;
    (7) Satisfy other requirements of section 10 of the Act; and
    (8) Identify a schedule for monitoring and the responsible parties 
who will monitor maintenance of baseline conditions, implementation of 
terms and conditions of the Agreement, and any incidental take as 
authorized in the permit.
    The Services will consult under section 7 of the Act on proposed 
issuance of the enhancement of survival permit.

Part 6. What Are Baseline Conditions?

    The Services, the property owner, and any other cooperator(s) must 
accurately describe the baseline conditions of the property and species 
covered by the Safe Harbor Agreement. The baseline conditions must 
reflect the known biological and habitat characteristics that support 
existing levels of use of the property by species covered in the 
Agreement. However, for circumstances beyond the control of the 
property owner (e.g., loss of nest trees due to storm damage), the 
parties to the Agreement may revise the baseline conditions to reflect 
the new circumstances and may develop a new baseline upon which all 
parties agree.
    (A) How do you Determine Baseline Conditions? This policy requires 
a full description of baseline conditions for any species covered in an 
Agreement (see Part 5 above). The Services, or appropriate cooperators, 
with the concurrence of the participating property owner, will describe 
the baseline conditions for the enrolled property in terms appropriate 
for the covered species such as number and location of individual 
animals, if determinable, existing habitat areas or characteristics 
that support the species covered at the time of the Agreement, and 
other appropriate attributes. On-site inspections, maps, aerial 
photographs, remote sensing, or other similar means can help determine 
baseline conditions. To the extent determinable, the parties to the 
Agreement must identify and agree on the degree to which the enrolled 
property is inhabited, permanently or seasonally, by the covered 
species. When either Service does not directly determine the baseline 
conditions, they must review and concur with the determination before 
entering into an Agreement, and, if necessary, conduct on-site visits. 
Formulation of baseline conditions can incorporate information provided 
by the

[[Page 32724]]

property owner and any other appropriate agency or species experts, as 
appropriate. For species that are extremely difficult to survey and 
quantify, an estimate and an indirect measure (e.g., number of suitable 
acres of habitat of the species) is acceptable and should be based on 
the best available techniques and information. The Services will 
develop the estimate, and hence baseline conditions, following a 
protocol agreed upon by all parties to the Agreement. The Services will 
use population estimates, where available, to determine the degree of 
occupancy of the enrolled lands by covered species. However, in most 
cases, the baseline conditions will be described as the amount and 
condition of habitat in the enrolled lands and not the number of 
individuals of covered species, since the number of individuals could 
fluctuate over time. For example, if population numbers did vary 
naturally during the term of an Agreement, and the baseline was 
described as number of individual animals, the landowner could be found 
to be in non-compliance with an Agreement when a return to baseline is 
desired simply because of natural population fluctuations and not as a 
result of his or her own actions. In cases where no seasonal or 
permanent occupation by covered listed species is documented, the 
Services will determine baseline conditions to be zero, unless the 
participating landowner agrees to a higher baseline.
    (B) Are Plants Covered by the Safe Harbor Policy? The Act's 
``take'' prohibitions generally do not apply to listed plant species on 
private property. Therefore, the incidental take assurances provided in 
this policy are legally not necessary for listed plant species. 
However, the FWS strongly encourages and often enters into Agreements 
with non-Federal property owners to restore and enhance habitats for 
listed plants.
    In addition, the Services must review the effects of the Safe 
Harbor permit on listed plants under section 7 of the Act, even when 
those plants are found on private property. In approving an enhancement 
of survival permit and entering into a Safe Harbor Agreement, the 
Services must confirm under section 7 that the Agreement is not likely 
to ``jeopardize the continued existence'' of any listed plants. In the 
interest of conserving listed plants and complying with their 
responsibilities under section 7, the Services will encourage a 
property owner to voluntarily assist the Services in restoring or 
enhancing listed plant habitats present within the enrolled property.
    (C) What are the Considerations for Future Section 7 and 
Assurances? In reviewing a proposed Safe Harbor Agreement under section 
7, the Services must determine whether anticipated future property use 
changes within the enrolled property and incidental take consistent 
with the established baseline conditions will jeopardize listed species 
of fish and wildlife or plants, or destroy or adversely modify 
designated critical habitat. If a future action on the enrolled 
property with a Federal nexus prompts the need for additional section 7 
review, and take of the listed species that does not move them below 
baseline conditions is likely, the Services will issue a non-jeopardy 
biological opinion and incidental take statement that is consistent 
with the Safe Harbor Agreement as long as the activity was initiated by 
the participating landowner (e.g., the need for a Clean Water Act 
section 404 permit). In particular, the Services will provide the 
Federal agency with reasonable and prudent measures to minimize 
incidental take that require only implementation of the terms and 
conditions provided to the participating landowner in the Safe Harbor 
Agreement and associated 10(a)(1)(A) permit. This approach is warranted 
because the effects of any incidental take consistent with the 
established baseline conditions would previously have been considered 
during the Services' intra-agency section 7 review of the proposed 
Agreement. However, if the future action was not initiated by the 
participating landowner's, (e.g., condemnation of lands for a highway 
project), the action agency may receive a Biological Opinion with 
reasonable and prudent alternatives or measures that are different from 
those included in the affected landowner's Safe Harbor Agreement/
permit.

Part 7. What Are Assurances to Property Owners?

    A property owner who enters into an Agreement and later wishes to 
return enrolled property to the baseline conditions needs to 
demonstrate that the agreed upon baseline conditions were maintained 
and that activities identified in the Agreement as necessary to achieve 
the net conservation benefit were carried out for the duration of the 
Agreement. If the property owner carried out the management actions and 
complied with the permit and the Agreement conditions, the property 
owner would be authorized to use the property in any manner that does 
not result in moving the enrolled property to below baseline 
conditions. These assurances run with the enrolled lands and are valid 
for as long as the participating landowner is complying with the Safe 
Harbor Agreement and associated permit. An Agreement may be of a 
relatively short duration if the management actions and net 
conservation benefits can be achieved within, for example, 10 years. 
However, a 10(a)(1)(A) permit may extend beyond the life of an 
Agreement since the assurances will run with the land, not just the 
length of the Agreement. Because the assurances run with the enrolled 
lands for as long as the permit is valid, the participating landowner 
has the opportunity to sustain covered species within the enrolled 
lands even after the expiration of the Safe Harbor Agreement and defer 
take, thus extending the temporal extent of the ``net conservation 
benefits'' achieved under the Agreement. When land subject to a Safe 
Harbor Agreement is transferred, the new landowners will, at their 
option, be able to receive assurances by signing a new Agreement and 
receiving a new permit.
    The Services are prepared as a last resort to revoke a permit 
implementing a Safe Harbor Agreement where continuation of the 
permitted activity would be likely to result in jeopardy to a species 
covered by the permit. Prior to taking such a step, however, the 
Services would first have to exercise all possible means to remedy such 
a situation.

Part 8. How Does the Services Manage Occupation by Non-Covered or Newly 
Listed Species?

    The possibility exists that after an Agreement is signed and an 
enhancement of survival permit is issued, a listed species not 
addressed in the Agreement may occupy enrolled property. If the 
Services conclude that the species is present as a direct result of the 
property owner's conservation actions taken under the Agreement, the 
Services will:
    (1) At the request of the property owner, amend the Agreement to 
reflect the changed circumstances and describe the baseline conditions 
for the added species, as appropriate; and
    (2) Review and revise the permit, as applicable, to address the 
presence of additional listed species on enrolled property.
    The Services will not extend assurances in the permit to a non-
covered listed species if the species was specifically excluded from 
the original Agreement at the participating property owner's request, 
or if its presence is a result of activities not directly attributable 
to the property owner's management activities. However, if the parties 
to the Safe Harbor Agreement

[[Page 32725]]

agree that a listed species that was not in the original Agreement 
should be included, then addenda to the Agreement and permit are 
necessary. If it is appropriate to add species to the Agreement, the 
Services must determine enhancement or maintenance actions that are 
specific to the newly covered species, baseline conditions, and a net 
conservation benefit to that species.
    Any change to a Safe Harbor Agreement or amendment to a section 10 
(a)(1)(A) permit to include a non-covered species would be subject to 
the same review process (e.g., section 7 and NEPA review) and issuance 
criteria (standards) as the original Safe Harbor Agreement and permit.

Part 9. Is Monitoring Required?

    The Services will ensure that adequate monitoring is included in 
each Safe Harbor Agreement/permit. The Services are committed to 
providing as much technical assistance as possible in the development 
of acceptable monitoring programs. In addition, the public will have an 
opportunity to review the monitoring plan during the public comment 
period on the issuance of the permit. Monitoring programs must be 
agreed upon before finalization of the Agreements and issuance of the 
permits. The monitoring component of these Agreements ensure that the 
participating landowner is implementing the provisions of these 
Agreements. Additionally, these monitoring programs will provide 
valuable program implementation information for the Services to 
evaluate the overall program and ensure its continued evolution toward 
a more effective and efficient program. Larger scale or complex Safe 
Harbor Agreements will require more in depth and thorough monitoring 
programs.

Part 10. How Does the Services Comply With National Environmental 
Policy Act?

    The National Environmental Policy Act of 1969 (NEPA), as amended, 
and the regulations of the Council on Environmental Quality (CEQ) 
require all Federal agencies to examine the environmental impact of 
their actions, to analyze a full range of alternatives, and to use 
public participation in the planning and implementation of their 
actions. The purpose of the NEPA process is to help Federal agencies 
make better decisions and to ensure that those decisions are based on 
an understanding of environmental consequences. Federal agencies can 
satisfy NEPA requirements by either a Categorical Exclusion, 
Environmental Assessment (EA), or Environmental Impact Statement (EIS), 
depending on the effects of their proposed action.
    The Services will review each Safe Harbor Agreement and associated 
permit action for any significant environmental, economic, social, 
historical, or cultural impact, or for significant controversy (516 
Departmental Manual 2, Appendix 2 for FWS and NOAA's Environmental 
Review Procedures and NOAA Administrative Order Series 216-6). If the 
Services conclude that a significant impact could occur, the issuance 
of a permit would require preparation of an EA or EIS, although the 
Services believe that the need for an EIS will be rare. General 
guidance on when the Services exclude an action categorically and when 
and how to prepare an EA or EIS is found in the FWS's Administrative 
Manual (30 AM 3) and NOAA Administrative Order Series 216-6. If a Safe 
Harbor Agreement and associated permit are not expected to individually 
or cumulatively have a significant impact on the quality of the human 
environment or other natural resources, the Agreement/permit may be 
categorically excluded. The Services are committed to develop NEPA 
documentation for complex or large scale (e.g., statewide) Safe Harbor 
Agreement/permits to ensure effective environmental review of such 
significant actions.

Part 11. Can Agreements Be Transferred?

    If a property owner who is party to a Safe Harbor Agreement 
transfers ownership of the enrolled property to a non-Federal entity, 
the Services will regard the new owner as having the same rights and 
obligations with respect to the enrolled property as the original 
property owner, if the new property owner agrees to become a party to 
the original Agreement and enhancement of survival permit. Actions 
taken by the new participating property owner that result in the 
incidental take of species covered by the Agreement would be 
authorized, so long as the new property owner complies with the 
management actions identified in the Agreement and maintains the 
baseline conditions. However, the new property owner would not be 
responsible for any provisions of the Agreement and would not receive 
any assurances relative to section 9 restrictions, unless the new owner 
agrees to become party to the Agreement and permit.
    All Safe Harbor Agreements will commit the participating property 
owner to notify the Services before any transfer of ownership of any 
property subject to the Agreement. This will allow the Services to 
contact the new property owner to explain the prior Safe Harbor 
Agreement and to determine whether the new property owner agrees to 
continue the original Agreement or desires to enter a new Agreement. If 
the new property owner agrees to continue an existing Safe Harbor 
Agreement, the Services will honor the original baseline conditions for 
the enrolled property under consideration.

Part 12. Do Property Owners Retain Their Discretion?

    Nothing in this policy prevents a participating property owner from 
implementing management actions not described in the Agreement as long 
as such actions maintain the original baseline conditions and do not 
affect the beneficial actions set forth in the Agreement. The Services 
will provide technical advice, to the maximum extent practicable, to 
the property owner, when requested. Additionally, a participating 
landowner that, for circumstances out of the landowner's control, needs 
to terminate the voluntary management actions that he or she agreed 
upon under the Safe Harbor Agreement, can terminate the Agreement prior 
to its expiration date and return the land to baseline conditions even 
if the expected ``net conservation benefits'' have not been realized. 
For example, if, due to unanticipated circumstances, the participating 
landowner needs to generate income to deal with a family emergency, the 
landowner has the option of terminating the Agreement with the Services 
to use his or her land, water, and/or natural resources to deal with 
the emergency.

Part 13. What Is the Discretion of All Parties?

    Nothing in this policy compels any party to enter into a Safe 
Harbor Agreement. Entering a Safe Harbor Agreement is purely voluntary 
for non-Federal entities and the Services, and presumes that the 
Agreement will serve the interests of all affected parties. An 
Agreement does not otherwise create or waive any legal rights of any 
party to the Agreement.

Part 14. How Do the Services Manage Neighboring Landowners?

    The potential effects and/or implications of a Safe Harbor 
Agreement on neighboring properties may be an important consideration 
in deciding whether to enter into a Safe Harbor Agreement. In some 
cases, actions carried out voluntarily by a landowner under a Safe 
Harbor Agreement may

[[Page 32726]]

result in listed species occupying adjacent properties.
    The Services will use the maximum flexibility allowed under the Act 
in addressing neighboring properties under Safe Harbor Agreements and 
associated take authorizations, including, but not limited to, granting 
of incidental take authority to the owners of neighboring lands, where 
occupation of neighboring lands is expected as a result of the 
Agreement. Neighboring landowners would only be required to agree to 
such conditions as would be necessary to ensure that the Agreement does 
not circumvent those obligations or requirements, if any, under section 
9 of the Act that were applicable at the time the Agreement was signed. 
Implications to neighboring landowners with non-enrolled lands will be 
determined on a case-by-case-basis, and the Services will make every 
effort to include them as a signatory party to the Agreement and 
enhancement of survival permit when the occupation of their lands by 
covered species is expected. For neighbors to receive the Safe Harbor 
Assurances, they would sign an Agreement with the following 
requirements: (1) Allow an assessment/establishment of the baseline on 
their properties with concurrence by all parties, (2) notify the 
Services prior to significantly modifying the habitat, and (3) allow 
the Services access to capture and translocate individuals of the 
covered species on their property that would be expected to be 
adversely affected by those habitat modifications. To facilitate 
neighboring landowner's participation, the Services will encourage them 
to become signatory parties to these Agreements, where appropriate.

Part 15. Will There Be Public Review?

    The Services will encourage property owners to involve the public 
in the development of an Agreement. However, public participation must 
be agreed to by the property owner. The Services will make every Safe 
Harbor Agreement available for public review and comment as part of the 
evaluation process for issuance of the associated enhancement of 
survival permit. This comment period will generally be 30 days; with 
the comment period for large or programmatic Agreements 60 days.

Part 16. What Is the Scope of the Policy?

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

    Dated: March 22, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
    Dated June 10, 1999.
Penelope D. Dalton,
Assistant Administrator of Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-15256 Filed 6-11-99; 5:08 pm]
BILLING CODE 4310-55-P