[Federal Register Volume 72, Number 212 (Friday, November 2, 2007)]
[Notices]
[Pages 62258-62264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21563]



[[Page 62258]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Endangered and Threatened Wildlife and Plants; Notice of 
Availability for Draft Recovery Crediting Guidance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of a draft guidance document issued to promote 
implementation of the Endangered Species Act. The document describes a 
crediting framework for Federal agencies in carrying out recovery of 
threatened and endangered species. The text of the guidance is included 
in this notice. Under the draft guidance, Federal agencies could show 
more specifically how adverse effects of agency activities to a listed 
species are offset by beneficial actions taken elsewhere for that 
species. The combined effects of the adverse and beneficial actions 
would have to provide a net conservation benefit to the species. We 
solicit comment from all interested parties on the contents of the 
draft guidance and likely effects of its implementation.

DATES: Comments from all interested parties on the draft guidance 
document must be received on or before December 3, 2007.

ADDRESSES: The draft guidance may be downloaded from our Web site at 
http://www.fws.gov/endangered/policy/oct.2007.html. To request a copy 
of the draft guidance, write to U.S. Fish and Wildlife Service, 420 
ARLSQ, Washington, DC 20240, Attention: Recovery Crediting; or call 
703/358-2171. You may also send an e-mail request to [email protected]. Specify whether you wish to receive a hard copy by 
U.S. mail or an electronic copy by e-mail.
    Send comments by any one of the following methods. See ``Viewing 
Documents'' and ``Public Comments Solicited'' under SUPPLEMENTARY 
INFORMATION for important information.
     Mail: U.S. Fish and Wildlife Service, 420 ARLSQ, 
Washington, DC 20240, Attention: Recovery Crediting.
     Hand Delivery/Courier: Division of Consultation, Habitat 
Conservation Planning, Recovery, and State Grants, Room 420, 4401 North 
Fairfax Drive, Arlington, VA 22203-1601.
     E-mail: [email protected]. Include ``Recovery 
Crediting comments'' in the subject line of the message.
     Fax: 703/358-2175. Include ``Recovery Crediting comments'' 
in the subject line.

FOR FURTHER INFORMATION CONTACT: Direct all questions or requests for 
additional information about the draft guidance to Dr. Richard L. 
Sayers; Division of Consultation, Habitat Conservation Planning, 
Recovery, and State Grants; U.S. Fish and Wildlife Service; 420 ARLSQ; 
Washington, DC 20240 (703/358-2171). Individuals who are hearing-
impaired or speech-impaired may call the Federal Relay Service at 1-
800-877-8337 for TTY assistance, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Background

    The ultimate goal of the Endangered Species Act of 1973, as amended 
(ESA) (16 U.S.C. 1531 et seq.), is the recovery of endangered and 
threatened species and the ecosystems on which they depend. In 
administering the recovery provisions of the Act, the Service 
collaborates with many partners, including Federal, State, and local 
agencies, Tribal governments, conservation organizations, the business 
community, and private landowners.
    Effective recovery planning and implementation depend in part on 
creative processes and agreements with Federal partners as well as 
other non-Federal partners in community-based recovery efforts. 
Examples of innovative conservation tools under the ESA include Safe 
Harbor Agreements, Habitat Conservation Plans, Recovery Permits, and 
Conservation Banks. The ultimate success of conservation and recovery 
of endangered and threatened species depends on a variety of 
innovations, such as these, that may be used in concert with one 
another or alone. We expect Recovery Credit Systems to complement them 
further. Additional information concerning these tools is available 
through the sources listed above under ADDRESSES.
    The recovery credit approach provides Federal agencies with an 
additional recovery tool developed using existing authorities. As 
described below, this tool was initially established in Texas to allow 
Fort Hood Military Reservation to accrue credits for conservation 
measures that it arranged by contract with neighboring landowners. The 
arrangement we developed with Fort Hood can be applied by other Federal 
agencies which may obtain credit for advancing the recovery of a listed 
species, and this credit may be expended, or debited, to offset 
potential adverse effects of future actions. A recovery crediting 
system can allow a Federal agency to accrue credit for recovery actions 
in advance of effects resulting from any specific action with adverse 
effects. We expect this process to increase incentives for Federal 
agencies to use their authorities to further the purposes of the ESA.
    The Service recognizes that recovery crediting is a mechanism with 
broad potential application. The Service may expand recovery crediting 
to entities other than Federal agencies or employ additional methods 
for Federal agencies. That is, we may be able to use credits as a 
measure of the benefit of conservation actions taken on Federal lands 
and we may consider other credit trading systems, beyond conservation 
banks, for landowners who take conservation actions on their own land 
or other private lands. We invite comment on how these or other 
arrangements may be provided for by this guidance and how these or 
other arrangements may be provided for by future guidance.

Viewing Documents

    The complete file for the recovery crediting guidance as well as 
the comments and materials we receive are available for inspection, by 
appointment, during normal business hours at the Division of 
Consultation, Habitat Conservation Planning, Recovery, and State 
Grants, Room 420, 4401 North Fairfax Drive, Arlington, VA 22203-1601.

Draft Guidance

    The text of the draft guidance follows.

Draft Guidance on Recovery Crediting for the Conservation of Threatened 
and Endangered Species

I. Introduction

A. Purpose and Scope of Guidance

    This document is intended to provide guidance on the development, 
management, and use of recovery credits as a measure for mitigating 
adverse effects to and contributions to the recovery of species listed 
as threatened or endangered under the Endangered Species Act of 1973, 
as amended (ESA). The guidance should assist Service personnel in 
determining the applicability of recovery credits for the conservation 
needs of a species, fulfill the purposes of the ESA, and provide 
consistency in the establishment, management, and use of recovery 
credits. For more detailed guidance and information on various other 
recovery programs, we included a list of helpful documents in section 
VII of this guidance. These documents will

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help the reader have a more complete understanding of recovery programs 
as a whole.
    Recovery crediting is an optional process for Federal agencies to 
use their authorities for the conservation of listed species. Recovery 
credits can provide an additional means of implementing ``conservation 
measures,'' commonly offered by Federal agencies to offset effects to 
listed species resulting from Federal actions. As noted in the 
Service's Consultation Handbook, ``When used in the context of the Act, 
`conservation measures' represent actions pledged in the project 
description that the action agency or applicant will implement to 
further the recovery of the species under review.'' For further 
discussion of conservation measures, see Endangered Species 
Consultation Handbook, p. 4-18. In a recovery crediting system, the 
action agency would present credits as part of its project description. 
A pledge represented by a credit must be a legally binding commitment 
such as a contract with a private landowner.
    Some potential benefits of a recovery crediting system include (1) 
better and more cost effective contributions to recovery through agency 
activities; (2) more exact analysis; and (3) increased predictability 
for all parties. The use of recovery credits as a conservation tool 
should be closely evaluated for each species or group of species, and 
may not be applicable in some situations. In other cases, recovery 
credits may be a valuable tool in advancing the recovery of a species.
    This guidance is general in nature, as each process developed for 
using recovery credits will differ based on a variety of circumstances. 
A recovery crediting system should be tailored to the specific 
circumstances under which it would be applied; ideally it should be 
based on the relevant recovery plans and, when recovery plans are 
lacking or inadequate for the design of a recovery credit system, 
should rely on other Service-approved documents (see ``B. Planning and 
Development Phase'' below for examples). Recovery credit systems may 
complement mitigation tools and conservation programs currently 
available, such as conservation banking. This guidance also does not 
attempt to closely define or assign roles to the agencies and other 
participants in a recovery crediting system; we anticipate that these 
will vary to some degree in response to the circumstances surrounding 
particular systems.

B. Background

    Effective recovery planning and implementation for listed species 
require creative processes, including recovery actions by Federal land 
managing agencies with adjacent landowners, local communities, Tribes, 
States and other Federal agencies.
    The concept of recovery credits was developed in Texas to allow the 
Department of Defense (DoD) to receive credit for conservation measures 
being implemented by Fort Hood Military Reservation. Fort Hood, which 
is home to the largest known population of the endangered golden-
cheeked warbler within its breeding range, carries out conservation 
measures with neighboring landowners in an effort to offset adverse 
effects that may result from future on-base military readiness 
activities. In exchange for implementing recovery actions, DoD 
requested that these actions be considered for ``banking'' to offset 
effects attributable to training activities.
    Although the Fort Hood example is very specific and limited in 
scope, the general concept can be applied more broadly: Federal 
agencies may obtain credit for conservation actions undertaken on non-
Federal lands to advance the recovery of listed species, and this 
credit may be expended, or debited, to offset potential adverse effects 
of future actions. In other words, Federal agencies may ``bank'' 
recovery credits in advance in a particular recovery crediting system, 
and apply those credits at a later time to the analysis of an agency 
action. This process can add an incentive for Federal agencies to use 
their authorities to further the purposes of the ESA.

C. What Is a Recovery Credit?

    A recovery credit is a quantifiable unit of measure sanctioned by 
the Service representing a contribution to the recovery of a species 
listed under the ESA. For example, in its simplest form, one credit 
could equal a specified number of acres of habitat or the acreage 
necessary to support one nest of the target species. Recovery credits 
should be based on a commitment to implement recovery actions outlined 
in a particular species' recovery plan or alternative Service-approved 
document. Each recovery credit, therefore, may be considered to be part 
of recovery implementation leading towards the downlisting or delisting 
goals of a threatened or endangered species, taking into account the 
debits that have occurred.
    A recovery crediting system is a specific program established to 
provide recovery actions on non-Federal lands for specific species 
while creating a ``bank'' of credits that a Federal agency may use to 
offset the effects of its actions. That is, the Federal agency may 
develop and store credits to be used at a later time to offset 
particular adverse effects of its actions. The overall system must 
provide a net benefit to the conservation of covered species, as 
determined by the Service using relevant recovery plans or alternative 
Service-approved documents. Under this policy, only Federal agencies 
may apply recovery credits to the effects of their proposed actions, 
but the system is similar in principle to conservation banking and 
habitat conservation plans. As noted above, however, we seek comments 
whether this policy may be expanded so that States, landowners, tribes, 
and other non-Federal entities may accrue credits for contributions to 
recovery.
    Recovery credits must be realized to create a ``bank'' of credits 
before they can be used to compensate for adverse effects to listed 
species. Unlike the situation with conservation banks, the recovery 
crediting system may be used for either permanent or temporary effects. 
However, the positive effects of the credits may be temporary (e.g., 
secured by a term contract) only if the negative effects to be offset 
are also temporary and, further, if the accounting function of the 
recovery credit system ensures that benefits of the credits are 
achieved in a way that actually offsets negative effects. The recovery 
actions represented by credits must take place within a geographic area 
that is biologically appropriate to offset the adverse effects, such as 
a recovery unit.

II. Guidance Considerations

A. Authorities

    The ESA provides the framework for this guidance. The ESA's stated 
purposes include providing ``* * * a means whereby the ecosystems upon 
which [listed] species depend may be conserved * * *'' and ``* * * a 
program for the conservation of such [listed] species * * *.'' Under 
section 3 of the ESA, conservation is defined as using ``* * * all 
methods and procedures which are necessary to bring any [listed] 
species to the point at which the measures provided pursuant to [the 
ESA] are no longer necessary.'' Within the context of this guidance, 
these definitions help determine and evaluate appropriate conservation 
measures and benefits. Further, recovery planning is addressed under 
section 4(f) of the ESA, where provisions for the development of

[[Page 62260]]

recovery plans for the ``conservation and survival of [listed] 
species'' are provided. A recovery plan is one of the most important 
tools to ensure sound decision-making throughout the recovery process.
    Section 7(a)(1) of the ESA requires that all Federal agencies `` * 
* * in consultation with and with the assistance of the [Service], 
utilize their authorities in furtherance of the purposes of [the ESA] 
by carrying out programs for the conservation of [listed species].'' 
There is broad discretion for Federal agencies to determine the 
appropriate methods for implementation of section 7(a)(1). One possible 
method for agencies to utilize their authorities for the conservation 
of the species is through this recovery crediting system.
    Establishing a recovery crediting system that results in a net 
conservation benefit to a listed species would contribute to that 
species' recovery. That is, the status of the target species will 
improve because, overall, a net conservation benefit must be sufficient 
to contribute to the recovery of the target species. Of course, each 
Federal agency will have to balance their authorities, statutory 
obligations and missions to determine if this policy is appropriate or 
viable for their purposes. For example, a Federal agency will have to 
determine if it has authority to acquire interest in non-Federal lands.

B. Goals and Objectives

    The goal of a recovery crediting system is to enhance the ability 
of Federal agencies to promote the recovery of listed species on non-
Federal land and offset adverse effects to listed species from proposed 
actions. Objectives are (1) to produce a net conservation benefit for 
the target species that advances its recovery, (2) to increase the 
flexibility of Federal agencies to accomplish their missions while 
meeting their requirements under the ESA, and (3) to promote effective 
Federal/non-Federal partnerships for species recovery.
    In order to meet the first objective, the standard for establishing 
recovery credits should be implementing actions within an approved 
recovery plan or other Service-approved document (such as a 
conservation strategy or framework) that specifically addresses the 
major threats identified for a species. An important element of any 
recovery crediting system is the implementation of one or more specific 
tasks included in a species' recovery plan or an alternative Service-
approved document necessary to meet downlisting or delisting criteria. 
Providing credits for recovery tasks allows Federal agencies to work 
together with other entities to more effectively use conservation 
measures in achieving net benefits that contribute to recovery, rather 
than simply addressing on-site effects of particular projects. When it 
is possible to foresee the utility of a recovery crediting system 
during the preparation of a recovery plan, authors of a plan should 
incorporate elements of the system explicitly in the plan.

C. Principles of Recovery Crediting

    Simply put, the recovery credit system is: (1) The development and 
accrual of credits, which would accomplish recovery tasks and have a 
net conservation benefit for the target species; and (2) A subsequent 
Federal action, which uses (debits) some portion of the credits, as 
part of the Federal action to offset adverse effects.
    Federal agencies can employ a recovery crediting system to 
accomplish recovery tasks as well as offset the adverse effects of 
their actions. Although Federal agencies with appropriate authorities 
may also purchase credits in a conservation bank or employ other 
mitigation or conservation measures, a Federal Agency may want to 
establish a system specific to its needs. Recovery crediting works 
within the existing framework of the ESA and its implementing 
regulations. This guidance is intended to assist in the early stages of 
planning and development of a proposed recovery crediting system. While 
no two crediting systems are likely to be identical, this guidance 
serves to address fundamental principles that would apply to all 
situations.
    The general principles of establishing a recovery crediting system 
include:
    The Recovery Crediting Process
     Information gathering and analysis;
     Planning and credit development phase; and
     Consultation on the credit accrual process (may be 
combined with the consultation on the debiting process)
    The Recovery Debiting Process
     Debit development phase;
     Programmatic debiting consultation; and
     Project specific consultation under programmatic 
consultation.
    Project Specific Application
     Project specific consultation under programmatic 
consultation; and
     Actual debits of the credits.
    While these bullets are based on multiple consultations, the 
Service believes that consultation can be achieved in many cases 
through a two-step consultation process: (1) A programmatic 
consultation to establish the recovery credit and debiting process and 
(2) a project specific consultation.

D. Coordination Process

    The Service has neither the resources nor the authorities to 
implement many, if not most, recovery actions. Collaboration with a 
wide variety of potential stakeholders is essential for the 
implementation of recovery plans. An appropriate recovery crediting 
system can assist the Service, other Federal agencies, and their 
partners to achieve more effective implementation of recovery plans.
    The Service and the Federal action agency will coordinate to ensure 
that the crediting system complies with all applicable laws. The 
Service and the Federal action agency should coordinate to ensure that 
the crediting system complies with all applicable laws. In particular, 
action agencies and the Service may need to review laws relating to 
privacy such as the Freedom of Information Act (``FOIA'') and the 
Privacy Act. Further, depending on the system used to create the 
recovery credits, action agencies and the Service may need to review 
the Federal Advisory Committee Act (``FACA''). The National 
Environmental Policy Act (``NEPA'') may be a relevant consideration as 
well. Service employees can consult with their appropriate solicitor's 
office for more specific advice with regard to these laws.
    The Service will coordinate with appropriate Federal and State 
partners, and we will encourage State and local entities, both 
governmental and non-governmental, to participate on the various 
workgroups and committees formed under the recovery crediting system 
that will be central to each process involved. For example, a local 
scientific committee may be established to assist the Service in 
defining recovery credits. While accrued recovery credits are only used 
by the Federal agency, the accrual process (as described below) is the 
key to success and should include participation by whatever non-Federal 
entities are appropriate.

III. Recovery Crediting Process

A. Information Gathering and Analysis Phase

    This phase involves the identification of threats and the 
conservation actions needed to address those threats. Generally, the 
species' recovery plan will provide a framework for analysis. This 
analysis establishes the means by which a credit in a recovery 
crediting system will be measured and accounted for. Information 
gathering and analysis

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involves the compiling of available information sources, identifying 
data gaps, and evaluation of target species. As stated above, a central 
element to defining a recovery crediting system is coordination with 
appropriate Federal and State partners, as well as interested local and 
non-governmental entities.
    Within this phase, two important issues should be addressed: (1) 
Evaluation of the conservation needs of the target species, and (2) 
determination whether a recovery crediting system is feasible based on 
the conservation needs of the listed species. Critical to both issues 
is the ability to evaluate measurable conservation benefits to the 
target species. Recovery crediting systems will vary in details, and 
some listed species may not be appropriate for inclusion in a credit 
system based on their conservation needs. Examples may include:
     Species with poorly understood threats,
     Species for which even minimal incidental take is likely 
to result in a jeopardy determination,
     Species with recovery plans that only provide interim 
objectives due to a lack of information necessary for recovery, or
     Species for which credits cannot easily be valued due to 
the nature of threats (e.g., a local endemic threatened by impoundment 
of a river).

B. Planning and Development Phase

    This phase uses the results of the information gathering and 
analysis to establish in detail what constitutes a credit. As in other 
conservation programs, the planning and development phase is likely to 
be the most important and time-consuming part of the process. Although 
debiting of credits will not come into play until after the credits are 
established, the debiting must be considered in the credit development 
phase in order to meet the standard of a net conservation benefit. As 
part of the planning process, Federal agencies may identify future 
needs, locations of future projects, types of future projects, and 
associated project activities. Values may be assigned to different 
tasks within a recovery plan or alternative Service-approved planning 
document based on priority, and the use of debits may be limited 
depending on the needs of the species' recovery. In addition, the 
recovery crediting system must integrate monitoring and reporting of 
both accrual and debiting of credits.
    Any recovery crediting system should address the threats that 
caused the species to be listed, advance the conservation goals of the 
species and must be based on sound scientific principles. An important 
part of the identification of credits is to first identify the threats 
to the species and measures to remove or ameliorate those threats to 
establish a conservation framework for the species. When conservation 
goals for the species have been established, the Service will be able 
to identify the appropriate unit of measure to establish a credit. The 
connection between threat, conservation measure, and credit must be 
transparent. That is, the system must demonstrate the relationship 
between the conservation value of the conservation measure as it 
applies to the credit.
    As stated above, in instances where a recovery plan is not 
specific, is not available, or is outdated, the Service may consider 
other means to establish recovery crediting. We will use information we 
determine represents the best available scientific information on the 
needs of the species. One option may be to develop a local step down 
approach or strategy to address the needs of a species. Other documents 
that may be useful in this regard include a recovery outline, a 5-year 
status review conducted by the Service, State recovery plans, final 
listing rules, and State Wildlife Action Plans.
    Credits should be valued based on recovery tasks, or analogous 
measures, available to a Federal agency. This phase will develop values 
to be assigned to recovery tasks, ensuring that a net conservation 
benefit is realized for the target species. Credit values are based 
upon achieving measurable objectives, and higher priority recovery 
tasks would generally receive more credit than lower priority ones. 
Ranking threats may be accomplished among or within tasks in a recovery 
plan. For example, various Federal conservation programs use a project 
selection process based on several considerations. Higher value (i.e., 
more credit) is typically placed on potential projects that:
     Preserve long term habitat.
     Address high priority conservation needs.
     Are larger in size (i.e., habitat size or quality).
     Are adjacent or in proximity to public lands or other 
permanently protected areas.
     Target a specific geographic focus area (e.g., recovery 
unit).
     Benefit multiple species.
     Establish corridors to accommodate migration or connect 
fragmented habitat.
    In this phase, the temporal nature of potential effects on or needs 
of the species may be analyzed. Many species require active management 
(e.g., invasive species control, prescribed fire, etc.) or public 
outreach to contribute to recovery or research to support recovery. 
Thus, some credits may be temporary in nature, provided the action 
meets the conservation needs of the species. Temporary credits could be 
used to offset temporary adverse effects in appropriate situations that 
still allow a net conservation benefit. For example, many 
transportation and linear utility projects require temporary workspace 
for construction, which is later returned to pre-construction 
conditions. An agency could accrue credits for the restoration and 
temporary protection of degraded habitat to mitigate for habitat that 
has temporary adverse effect, with the duration of credit based on 
benefits achieved at the restored site and eventual restoration of the 
affected site.
    In its simplest form, a single Federal agency would identify a 
recovery action(s) for establishment of a recovery crediting system. 
For example, a recovery plan may call for the permanent preservation of 
a viable population in a particular recovery unit. A Federal agency may 
identify that need, and develop a process for accruing credits through 
conservation easements that would meet that objective of the recovery 
plan (preserving the viable population). Credits reflecting habitat 
protection or restoration would be considered to be banked when 
conditions on the ground fully reflect the recovery goal supported by 
the credits. More complex crediting systems may involve multiple 
Federal agencies and may assign credits to several or all tasks within 
a recovery plan. In either case, a single Federal agency would be the 
holder of credits. Whenever possible, other partners should be included 
in the development process (e.g., State agencies, non-governmental 
organizations, etc.), and they may play a major role in implementing 
the credit accrual process.
    Finally, in the development phase, it is important to address the 
transferability of accrued credits. Circumstances may arise in which a 
Federal agency may opt to sell or transfer banked credits to another 
agency. These situations should be considered early and be included in 
the crediting process, but may be defined in greater detail within the 
debiting process.

C. Consultation on Credit Accrual Phase

    Upon completing the development of a proposed crediting process the 
Federal action agency will consult under section 7 of the ESA. Thus, 
the use of a proposed crediting system would be a

[[Page 62262]]

discretionary Federal action that ``may affect'' a listed species, 
which requires section 7 consultation. For the process developed to 
accrue credits, the net effect on the target species should be 
beneficial. Most credit accrual processes will be addressed through 
informal consultation, concluding with a ``not likely to adversely 
affect'' concurrence letter from the Service. (As noted above, this 
consultation could be part of a programmatic consultation.) In these 
cases, the Service will evaluate all potential effects of the credit 
accrual process and, if it is determined that the effects would be 
insignificant, discountable, or completely beneficial, provide an 
appropriately detailed rationale for the concurrence. In some 
instances, temporary adverse effects may be necessary to achieve the 
maximum conservation benefit to the target species. For example, a 
survey may involve some level of taking of a listed species. In these 
cases, it may be necessary to consult formally on the credit accrual 
process, if it is anticipated that incidental take may occur as a 
result of credit acquisition. Alternatively, a Federal agency may 
consult on the entire recovery credit system, covering accrual and 
debiting in one programmatic consultation.
    As discussed above, although a Federal agency needs to consider how 
credits will be debited while determining how they will be accrued, 
once the agency establishes a recovery crediting system through the 
section 7 consultation process, a Federal agency may begin accruing 
credits through the procedures outlined in the plan.

IV. Recovery Debiting Process

A. Debit Development Phase

    This phase establishes the standards according to which credits 
will be used. This phase may be conducted separately or concurrently 
with the credit accrual planning and development. An advantage of 
considering crediting and debiting at the same time is that a better 
match may be achieved between the credits accrued and the debiting 
needs. Establishing the guidelines for debit use and other factors, 
limitations, accounting, and monitoring and reporting may be created as 
a stand-alone document, but will eventually become the ``Project 
Description'' within a biological assessment or evaluation, and 
subsequent biological opinion. In addition, the debit process could 
consider the possibility of Federal agencies other than the Federal 
agency that established the Recovery Crediting System being able to use 
credits.
    Consideration of debits includes ensuring that agencies maintain a 
net conservation benefit gained by credit accrual. In general, credits 
that accomplish tasks in a species' recovery plan would normally meet a 
net conservation benefit standard. However, because credits would be 
used for mitigation, it is important to ensure the debit process does 
not limit, counter, or preclude necessary recovery objectives. Examples 
of using a debiting process to ensure a conservation benefit include:
     Using biologically-appropriate mitigation ratios in 
habitat-based crediting (e.g., more than one credit for each debit 
necessary to fully offset adverse effects).
     Maintaining a credit balance that ensures an incremental 
increase in the species' conservation status.
     Restricting use of debits to areas deemed not essential to 
recovery.
     Limiting the types of activities available for debiting.
    Similar to planning the crediting phase, it is essential that an 
activity or action's potential effects to the target species be 
sufficiently understood in order for it to be included in the debiting 
process. In some instances, the effects of even well-understood actions 
may possess some level of uncertainty. The debiting process should be 
designed to accommodate uncertainty evaluated based on a clearly stated 
and explained set of assumptions.

B. Programmatic Debiting Consultation

    The debiting process is subject to consultation under section 
7(a)(2) of the ESA. This consultation determines whether a proposed 
agency action is likely to jeopardize the continued existence of a 
listed species or destroy or adversely modify critical habitat. 
Programmatic consultation addresses programs or groups of similar 
actions implemented by a Federal agency. A non-jeopardy biological 
opinion also determines the amount or extent of anticipated incidental 
take, if any.
    In implementing a recovery crediting system, the programmatic 
approach will be necessary due to the nature of credit and debit 
concepts, and to ensure a net conservation benefit to the species. The 
Federal action subject to consultation is the establishment of the 
debiting process and actions included therein. Under programmatic 
consultation, much of the effects analysis is completed upfront, rather 
than repeatedly for each individual action. By completing this analysis 
beforehand in a programmatic biological opinion, the anticipated 
effects of the action agency's future projects can be added into the 
environmental baseline prior to their actual completion. The appended 
and tiered methods of programmatic consultation involve a two-stage 
consultation process that would be appropriate here. The first stage is 
programmatic and analyzes the potential landscape-level effects that 
may result from the debiting process. The second stage addresses 
project-specific effects of each individual project under the action 
agency's program and previously included in the programmatic biological 
opinion.
    A Federal agency may include conservation measures in a proposed 
action as mandatory, non-discretionary actions or activities that will 
minimize adverse effects to listed species. A recovery crediting system 
would formalize that process and mitigate adverse effects to listed 
species by taking measures (accruing recovery credits) that may be 
included as conservation measures for a specific project in a specific 
geographic location. The Service would consider the use of recovery 
credits during the jeopardy analysis of a biological opinion. The ESA 
requires the Service to specify any necessary or appropriate 
minimization of the effects of incidental take exempted in a biological 
opinion. Because recovery credits would be acquired in advance of a 
specific Federal action and may not be associated with incidental take 
resulting from the proposed action itself, they would not normally 
minimize the effects of incidental take associated with the specific 
action. The biological opinion may still require reasonable and prudent 
measures and terms and conditions that address the incidental take 
resulting at the project-specific level.
    The end product of programmatic consultation will be a 
comprehensive biological opinion issued to the Federal action agency 
that describes in detail the debiting process and all actions and 
activities involved. It will evaluate all potential effects of the 
actions (debits) as well as the credits used to offset the effects and 
provide a jeopardy analysis for listed species and destruction/adverse 
modification analysis for designated critical habitat if applicable. It 
is important to consider all listed species that may be affected, not 
just the target species, and any designated critical habitat occurring 
in the action area for the jeopardy/adverse modification analysis.
    The programmatic biological opinion may not be able to describe 
take at the programmatic level. In this case, the specific take 
authorization and associated reasonable and prudent measures and terms 
and conditions

[[Page 62263]]

would be described in site-specific biological opinions. If the 
overarching biological opinion can describe, with appropriate 
documentation from the action agency, the project-specific actions, 
then a list of reasonable and prudent measures and terms and conditions 
can be included, and no additional opinion is needed for those actions. 
The Service must develop reasonable and prudent measures and terms and 
conditions in close coordination with the action agency. This 
coordination may identify specific measures the action agency will 
incorporate at the project-specific level.

C. Project-Specific Consultation

    As individual projects are proposed under the recovery crediting 
system, the action agency provides project-specific information as 
described in the programmatic biological opinion. This information 
should include, but not be limited to, the specific areas to be 
affected, the species and critical habitat that may be affected, a 
description of anticipated effects (in reference to those already 
analyzed in the programmatic biological opinion), a description of any 
additional effects not considered in the programmatic consultation, 
appropriate reasonable and prudent measures and terms and conditions, 
the resulting debits as ranked in the programmatic opinion, and the 
credit balance resulting from the action. The project-level 
consultation should be an expedited process because most of the needed 
analysis will have occurred at the programmatic level. This is an added 
incentive for Federal agencies to use programmatic consultation and 
recovery crediting.

V. Monitoring

    A monitoring program is essential to the success and the 
credibility of a recovery crediting system, both for the crediting and 
debiting aspects of the process. The scope of the monitoring plan 
should be commensurate with the crediting system's conservation 
framework, based on the goals and objectives of the species' recovery 
plan; the monitoring should measure the objectives as implemented by 
the crediting system. Ultimately, the Federal action agency is 
responsible for accounting for credits and compliance with the debiting 
process as determined through the programmatic biological opinion. The 
Service should provide technical assistance in the monitoring plan, and 
will be responsible for periodic review of the species' environmental 
status, either through an established protocol or more conventional 
methods (e.g., 5-year review, programmatic biological opinions, etc.).
    In general, monitoring may comprise two elements: Effectiveness 
monitoring and compliance monitoring. Effectiveness monitoring will 
evaluate the credit valuation and accrual process in achieving the 
goals and objectives of recovery actions. This monitoring focuses on 
the crediting process, involves principles of adaptive management, and 
includes all implementation partners. The responsibility of 
effectiveness monitoring belongs to the Federal agency that accrues and 
holds credits, although other entities would be involved. When the 
credit accrual process results in a biological opinion from the 
Service, effectiveness monitoring provisions are part of the project 
description. Any coverage under the incidental take statement, 
therefore, is dependent on the action agency carrying out the action as 
described in the project description.
    Compliance monitoring audits and accounts for credits and debits, 
and ensures proper implementation of the agency action. Any monitoring 
and reporting must be incorporated into the project description as an 
integral part of implementing the recovery crediting system.
    Although a recovery crediting system is a focused tool for Federal 
agencies to make a positive contribution towards the recovery of listed 
species while creating flexibility for offsetting effects of their 
other actions, the Service encourages the development and use of other 
types of crediting systems to meet other needs and circumstances. In 
addition, this guidance by no means restricts Federal agencies from 
developing other crediting systems such as conservation banks. A 
recovery crediting system is one method by which a Federal agency may 
contribute towards its section 7(a)(1) responsibilities. The Service 
encourages Federal agencies to develop other programs that would also 
contribute to the recovery of listed species on Federal and non-Federal 
lands.

VII. References

    The following is a list of documents that would be useful for 
establishing a recovery crediting system. Some are in draft form, but 
are readily available to Service personnel through Regional Offices or 
the Washington Office.

U.S. Fish and Wildlife Service. 1990. Policies and guidelines for 
planning and coordinating recovery of endangered and threatened 
species. Washington, DC. 14pp. + appendices.
U.S. Fish and Wildlife Service. 1999. Final Safe Harbor Policy. 64 FR 
32717, June 17, 1999.
U.S. Fish and Wildlife Service. 2003. Guidance for the Establishment, 
Use, and Operation of Conservation Banks.
U.S. Fish and Wildlife Service and National Marine Fisheries Service. 
1998. Endangerered Species Act Consultation Handbook: Procedures for 
Conducting Section 7 Consultations and Conferences. Washington, DC.
U.S. Fish and Wildlife Service and National Marine Fisheries Service. 
2004 (updated 2006). Draft Endangered and Threatened Species Recovery 
Planning Guidance.
Williams, B.K., R.C. Szaro, and C.D. Shapiro. 2007. Adaptive 
Management: The U.S. Department of the Interior Technical Guide. 
Adaptive Management Working Group, U.S. Department of the Interior, 
Washington, DC.

Public Comments Solicited

    The draft guidance is broad in nature and intended to be adaptable 
to a wide array of local conditions and circumstances. We are 
particularly interested in receiving comments on the following aspects 
of the draft document:
     The level of detail required to make the guidance most 
useful in the field.
     The clarity of the standards established for a recovery 
crediting system.
     The means by which a Federal agency will know that credits 
it accrues will be available for its use in the future.
     The potential relationship between recovery crediting 
systems and critical habitat.
    We will take into consideration the relevant comments, suggestions, 
or objections that we receive by the comment due date indicated above 
in DATES. These comments, suggestions, or objections, and any 
additional information we receive, may lead us to adopt final guidance 
that differs from the draft. We prefer to receive comments via e-mail, 
but you may submit your comments by any method mentioned above in 
ADDRESSES.
    Please submit e-mail comments to [email protected] in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Recovery Crediting comments'' in 
the subject line of the message, preferably with your full name and 
return address in the body of your message. Please note that the 
Internet address will be closed when the public comment period ends.

[[Page 62264]]

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

    Authority: The authority for this action is the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: October 25, 2007.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
[FR Doc. E7-21563 Filed 11-1-07; 8:45 am]
BILLING CODE 4310-55-P