[Federal Register Volume 81, Number 34 (Monday, February 22, 2016)]
[Rules and Regulations]
[Pages 8663-8665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03541]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Chapter IV
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Chapter IV
[FWS-HQ-ES-2016-N017; FF09E00000 167 FXES11130900000]
Revised Interagency Cooperative Policy Regarding the Role of
State Agencies in Endangered Species Act Activities
AGENCY: Fish and Wildlife Service, Interior, and National Marine
Fisheries Service, National Oceanic and Atmospheric Administration
(NOAA), Commerce.
ACTION: Notice of policy revision.
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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries
Service announce an interagency policy to clarify the role of State
agencies in activities undertaken by the Services under authority of
the Endangered Species Act of 1973, as amended, and associated
regulations. The policy, which is a revision of a policy issued in
1994, reflects a renewed commitment by the Services and State fish and
wildlife agencies to work together in conserving America's imperiled
wildlife.
DATES: February 22, 2016.
FOR FURTHER INFORMATION CONTACT: Gary Frazer, Assistant Director for
Ecological Services, U.S. Fish and Wildlife Service, 18th and C Streets
NW., Washington, DC 20240; telephone 202/208-4646; facsimile 703/358-
5618, or Angela Somma, Chief, Endangered Species Division, National
Marine Fisheries Service, 1355 East-West Highway, Silver Spring,
Maryland 20910; telephone 301/427-8403; facsimile 301/713-0376. If you
use a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Congress enacted the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.) (ESA or Act), to establish a program for the
conservation of endangered and threatened species and the ecosystems on
which they depend. The Secretaries of the Interior and Commerce
(hereafter referred to as ``the Secretaries'') have the responsibility
for administering the ESA. The Secretaries have delegated this
responsibility to the U.S. Fish and Wildlife Service of the Department
of the Interior and the National Marine Fisheries Service of the
Department of Commerce (hereafter referred to as ``the Services'').
The Services recognize that, in the exercise of their general
governmental powers, States possess broad trustee and police powers
over fish, wildlife, and plants and their habitats within their
borders. Unless preempted by Federal authority, States possess primary
authority and responsibility for protection and management of fish,
wildlife, and plants and their habitats.
State agencies often possess scientific data and valuable expertise
on the status and distribution of endangered, threatened, and candidate
species of wildlife and plants. State agencies, because of their
authorities and their close working relationships with local
governments and landowners, are in a unique position to assist the
Services in implementing all aspects of the Act. In this regard,
section 6 of the Act provides that the Services shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. The term State agency means any State agency,
department, board, commission, or other governmental entity that is
responsible for the management and conservation of fish, plant, or
wildlife resources within a State.
[[Page 8664]]
State Involvement
In 1994, the Services published a policy regarding the role of
State fish and wildlife agencies in implementing the ESA (59 FR 34275;
July 1, 1994). That policy has been available on the Services' Web
sites. We are now updating and revising that policy. The updated
policy, developed in coordination with the State fish and wildlife
agencies, reaffirms the commitment for engagement and collaboration
between the Services and State fish and wildlife agencies on many
aspects of ESA implementation, with the understanding that this
collaboration is undertaken in the context of the ESA's statutory
timelines.
The revised policy reflects a renewed commitment by the Services
and State fish and wildlife agencies to work together in conserving
America's imperiled wildlife. The revised policy also references the
suite of ESA conservation tools not available or in common use when the
policy was originally developed in 1994. These tools include Habitat
Conservation Plans, Candidate Conservation Agreements with Assurances,
and Safe Harbor Agreements. All of these tools are set forth in
regulations in title 50 of the Code of Federal Regulations in part 17.
Changes to the policy include more proactive conservation of
imperiled species before they require protections of the ESA, expanded
opportunities for engagement on listing and recovery activities, and
improved planning with State agencies across a species' range. The
revised policy follows:
Policy Regarding the Role of State Agencies in Endangered Species Act
Activities
Section 6 of the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.) (ESA), directs the Secretaries of the Interior and
Commerce to cooperate to the maximum extent practicable with the States
in carrying out ESA programs. In furtherance of this provision of the
law, it is the policy of the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service to involve State agencies as
described in the items listed below for the following ESA activities:
A. Prelisting Conservation
1. Use the expertise and solicit the information of State agencies
in determining which species should be included on the list of
candidate animal and plant species.
2. Use the expertise and solicit the information of State agencies
in conducting population status inventories and geographical
distribution surveys to determine which species warrant listing.
3. Use the expertise of State agencies in designing and
implementing prelisting stabilization actions, consistent with their
authorities, for species and habitat to remove or alleviate threats so
that the listing priority is reduced or listing as endangered or
threatened is not warranted. Encourage collaborative conservation
planning with State agencies across the range of a species, including,
as appropriate, through State Wildlife Action Plans, and work
collaboratively with State agencies to facilitate voluntary
conservation actions on behalf of species before they reach the point
at which they need to be listed as threatened or endangered under the
Act.
4. Work collaboratively with State agencies to design and encourage
the use of Candidate Conservation Agreements with Assurances to provide
non-Federal landowners with incentives for engaging in voluntary
proactive conservation of species that are candidates for listing under
the Act.
B. Listing
1. Use the expertise of, and coordinate and collaborate with, State
agencies in developing the scientific foundation upon which the
Services base their determinations for listing actions, including: 12-
month petition findings; proposed and final listing rules; section 4(d)
rules that specify the prohibitions necessary and advisable for the
conservation of species listed as threatened; proposed and final
critical habitat designations; and proposed and final rules to change
the status of a species from endangered to threatened (or vice versa)
or to remove a species from the list.
2. Provide notification to State agencies of any proposed
regulation in accordance with provisions of the Act and coordinate with
State agencies in developing any work plans for future listing
activities.
C. Consultation
1. Inform State agencies of any Federal agency action that is
likely to adversely affect listed species or designated critical
habitat, or that is likely to adversely affect species proposed for
listing or proposed critical habitat, and request relevant information
from them, including the results of any related studies, in analyzing
the effects of the action and cumulative effects on the species and
habitat.
2. Request an information update from State agencies prior to
preparing the final biological opinion to ensure that the findings and
recommendations are based on the best scientific and commercial data
available.
3. Recommend to Federal agencies that they provide State agencies
with copies of the final biological opinion unless the information
related to the consultation is protected by national security
classification or is confidential business information. Decisions to
release such classified or confidential business information shall
follow the action agency's procedures. Biological opinions not
containing such classified or confidential business information will be
provided to the State agencies by the Services, if not provided by the
action agency, after 10 working days. The exception to this waiting
period allows simultaneous provision of copies when there is a joint
Federal-State consultation action.
D. Habitat Conservation Planning
1. Use the expertise and solicit the information and participation
of State agencies in all aspects of the habitat conservation planning
process.
2. Work collaboratively with State agencies to the maximum extent
practicable to advance efficiency and avoid duplication of effort when
the Services and the States both have similar authority for permitting
activities related to threatened and endangered species.
E. Recovery
1. Use the expertise and solicit the information and participation
of State agencies in all aspects of the recovery planning process for
all species under their jurisdiction.
2. Use the expertise and solicit the information and participation
of State agencies in implementing recovery plans for listed species.
State agencies have the capabilities to carry out many of the actions
identified in recovery plans and are in an excellent position to do so
because of their close working relationships with local governments and
landowners.
3. Recognize and use the expertise and authority of State agencies
in designing and implementing monitoring programs for species that have
been removed from the Lists of Endangered and Threatened Wildlife and
Plants. Unless preempted by Federal authority (e.g., Marine Mammal
Protection Act, Bald and Golden Eagle Protection Act), States possess
primary authority and responsibility for protection and management of
fish, wildlife, and plants and their habitats, and are in an
[[Page 8665]]
excellent position to provide for the conservation of these species
following their removal from the lists.
4. Work collaboratively with State agencies to design and encourage
the use of Safe Harbor Agreements to assist in recovery of listed
species.
Authors
The primary authors of this draft policy are the staff members of
the Ecological Services Program, U.S. Fish and Wildlife Service, 5275
Leesburg Pike, Falls Church, VA 22041 and staff members of the
Endangered Species Division, National Marine Fisheries Service, 1355
East-West Highway, Silver Spring, Maryland 20910.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: February 5, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
Dated: February 10, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2016-03541 Filed 2-19-16; 8:45 am]
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