[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Notices]
[Pages 95164-95175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31061]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket Nos. FWS-HQ-ES-2015-0177 and 160223138-6138-01; FF09E40000 156 
FXES11150900000; 160223138-6999-02]
RIN 1018-BB08; 0648-BF79


Candidate Conservation Agreements With Assurances Policy

AGENCIES:  U.S. Fish and Wildlife Service (FWS), Interior; National 
Marine Fisheries Service (NMFS), National Oceanic and Atmospheric 
Administration (NOAA), Commerce.

ACTION: Announcement of revised policy.

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SUMMARY: We, the U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service (Services when referring to both, and Service when 
referring to when the action is taken by one agency), announce 
revisions to the Candidate Conservation Agreements with Assurances 
policy under the Endangered Species Act of 1973, as amended. We added a 
definition of ``net conservation benefit'' to this policy and 
eliminated references to the confusing requirement of ``other necessary 
properties'' to clarify the level of conservation effort each agreement 
needs to include in order for the Services to approve an agreement. In 
a separate document published in today's Federal Register, the U.S. 
Fish and Wildlife Service changed its regulations regarding Candidate 
Conservation Agreements with Assurances to make them consistent with 
these changes to the policy.

DATES: This policy is effective on January 26, 2017.

ADDRESSES: This final policy is available on the Internet at http://www.regulations.gov at Docket Number FWS-HQ-ES-2015-0177. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this policy, are also available at the same location on 
the Internet.

FOR FURTHER INFORMATION CONTACT: Jeff Newman, Chief, Division of 
Recovery and Restoration, U.S. Fish and Wildlife Service, MS: ES, 5275 
Leesburg Pike, Falls Church, VA 22041-3803 (telephone 703-358-2171); or 
Angela Somma, Chief, Endangered Species Conservation Division, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910 (telephone 301-427-8403, 
facsimile 301-713-0376). Persons who use a telecommunications device 
for the deaf may call the Federal Information Relay Service at 800-877-
8339.

SUPPLEMENTARY INFORMATION: 

Background

    The U.S. Fish and Wildlife Service (FWS) and the National Marine 
Fisheries Service (NMFS) are charged with implementing the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA or Act); 
among the purposes of the ESA are to provide a means to conserve the 
ecosystems upon which species listed as endangered or threatened depend 
and a program for listed species conservation. Through its Candidate 
Conservation program, one of the FWS's goals is to encourage the public 
to voluntarily develop and implement conservation plans for declining 
species prior to them being listed under the ESA (16 U.S.C. 1531 et 
seq.). The benefits of such conservation actions may contribute to not 
needing to list a species, to list a species as threatened instead of 
endangered, or to accelerate the species' recovery if it is listed. The 
Services put in place a voluntary conservation program to provide 
incentives for non-Federal property owners to develop and implement 
conservation plans for unlisted species: Candidate Conservation 
Agreements with Assurances (CCAAs). The policy for this type of 
agreement was finalized on June 17, 1999 (64 FR 32726), along with 
implementing regulations for FWS in part 17 of title 50 of the Code of 
Federal Regulations (CFR) (64 FR 32706). The FWS revised the CCAA 
regulations in 2004 (69 FR 24084; May 2, 2004) to make them easier to 
understand and implement by defining ``property owner'' and clarifying 
several points, including the transfer of permits, permit revocation, 
and advanced notification of take.
    To participate in a CCAA, non-Federal property owners agree to 
implement on their land the CCAA's specific conservation measures that 
reduce or eliminate threats to the species that are covered under the 
agreement. An ESA section 10(a)(1)(A) enhancement-of-survival permit is 
issued to the agreement participant providing a specific level of 
incidental take coverage should the property owner's agreed-upon 
conservation measures and routine property-management actions (e.g., 
agricultural, ranching, or forestry activities) result in

[[Page 95165]]

take of the covered species if listed. Property owners receive 
assurances that they will not be required to undertake any other 
conservation measures than those agreed to, even if new information 
indicates that additional or revised conservation measures are needed 
for the species, and they will not be subject to additional resource 
use or land-use restrictions.
    Under the 1999 policy, to approve a CCAA we had to ``determine that 
the benefits of the conservation measures implemented by a property 
owner under a CCAA, when combined with those benefits that would be 
achieved if it is assumed that conservation measures were also to be 
implemented on other necessary properties, would preclude or remove any 
need to list the covered species.'' This language had led some property 
owners to believe that the Services expected each individual CCAA to 
provide enough conservation benefits to the species to remove any need 
to list the species. The confusion created by the hypothetical concept 
of conservation measures that need to be implemented on ``other 
necessary properties'' is the reason we are clarifying and revising the 
CCAA standard to require a net conservation benefit to the covered 
species specifically on the property to be enrolled and eliminating 
references to ``other necessary properties.''

Changes From the Draft Policy

    Based on comments we received on the draft policy, we include the 
following changes in this final policy:
    (1) In Part 1 of the policy, we inserted language that states that 
the overall goal of the Services' candidate conservation program is to 
encourage the public to voluntarily develop and implement conservation 
plans for declining species prior to them being listed under the ESA. 
The benefits of such conservation actions may contribute to not needing 
to list a species, to list a species as threatened instead of 
endangered, or to accelerate the species' recovery if it is listed. 
CCAAs are one tool that can help to achieve this goal, and provides an 
important incentive for property owners to participate in a CCAA. 
However, we recognize that it is unrealistic to expect, in most 
situations, an individual CCAA for one property to be successful in 
reaching this goal (with the exception of an enrolled property that 
contains the majority of the populations and habitat of a species).
    (2) In Parts 1 and 2 of the policy, we inserted the word ``key'' 
before ``threats'' in certain places to indicate that the conservation 
measures included in a single or individual CCAA must be designed to 
address those threats that are of the highest priority or those threats 
where we expect to achieve the most benefit to the covered species by 
addressing them on the enrolled property. While a property owner will 
not be required to address every threat on the enrolled property, the 
property owner will be required to address the key threat(s) to the 
covered species that are under the landowner's control in order to 
participate in a CCAA and achieve a net conservation benefit for that 
species.
    (3) In Part 2 of the policy, we revised the first part of the 
definition of ``net conservation benefit (for CCAA)'' by changing 
``and'' to ``or'' to indicate that benefits from the conservation 
measures can be designed to improve the status of the species directly, 
or indirectly through improvements to its habitat, and we slightly 
revised this phrase to clarify that removing or minimizing threats 
leads to stabilized or improved populations or habitat improvement: Net 
conservation benefit (for CCAA) is defined as the cumulative benefits 
of the CCAA's specific conservation measures designed to improve the 
status of a covered species by removing or minimizing threats so that 
populations are stabilized, the number of individuals is increased, or 
habitat is improved.
    (4) In Parts 1 and 2, in several places, we changed ``likely to 
become candidates'' to ``may become candidates,'' so we do not imply 
that we are likely to find that a particular species should be a 
candidate for listing under the ESA.
    (5) In Part 12 of the policy, we removed ``when appropriate'' in 
the second sentence. The Services are committed to coordinating with 
State fish and wildlife agencies, and the phrase ``when appropriate'' 
implied that the Services would not regularly coordinate with the 
States, which is not our intent.
    (6) Throughout the policy, as appropriate, we added language 
regarding improving the status of the covered species after mention of 
``net conservation benefit'' to provide more clarity on the 
requirements of a CCAA because FWS or NMFS staff biologists, CCAA 
applicants, or consultants may not utilize the definitions section of 
the policy. We also inserted ``the CCAA's'' before ``specific 
conservation measures'' in several places in the policy to prevent the 
potential misunderstanding of ``cumulative benefits'' to mean those 
other than ones associated with the CCAA.

Summary of Comments and Recommendations

    On May 4, 2016, we published a draft revised Candidate Conservation 
Agreements with Assurances policy in the Federal Register (81 FR 26817) 
that requested written comments and information from the public. 
Concurrently with the revised proposed policy, we also published 
revised proposed regulations that reflected the revisions made in the 
CCAA policy (81 FR 26769). In both documents, we announced that the 
comment period would be open for 60 days, ending July 5, 2016. Because 
the vast majority of comments we received addressed revisions to the 
CCAA policy, other comments did not specifically identify whether the 
comment pertained to the policy or the regulations, and all the 
revisions in the regulations completely overlap with those in the 
policy, we are addressing all comments we received on the policy and 
the regulations together in this document. Comments we received are 
grouped into general categories specifically relating to the draft 
policy and proposed revisions to the regulations.
    Comment (1): Many commenters supported the proposed changes, 
specifically the net-conservation-benefit standard and the deletion of 
the hypothetical references to ``other necessary properties.'' Several 
other commenters stated that they believed the new standard will help 
clarify the intent of the CCAA program and may also encourage landowner 
enrollment and facilitate greater participation in prelisting 
conservation actions.
    Our Response: We agree with the commenters. The intent of the 
policy and regulation revisions was to provide a more understandable 
standard for approving CCAAs.
    Comment (2): A commenter expressed concern that the new standard 
will be viewed by landowners as more onerous, setting a higher bar of 
required conservation and could discourage participation in CCAAs. 
Several other commenters believed the ``net conservation benefit'' 
definition was unclear and could be interpreted as lowering the 
conservation bar, while others interpreted it as raising the bar. 
Additionally, commenters stated that ensuring a ``net conservation 
benefit'' for all covered species in a multi-species CCAA may be 
difficult to achieve and further discourage the development of such 
CCAAs.
    Our Response: Our only intent in redefining the CCAA standard was 
to create a standard that is easier for the public and the staff of the 
Services to

[[Page 95166]]

understand. The new standard does not set a higher or lower bar than 
the standard contained in the original 1999 policy. Under the 1999 
policy, a property owner participating in a CCAA was required to 
address key threats that were under their control to the species on the 
enrolled property, or in the case where a property owner was already 
appropriately managing for the benefit of the covered species, the 
property owner would need to continue those conservation measures for 
the duration of the CCAA. The revised standard explicitly states these 
provisions. For multiple-species CCAAs, we must ensure that the 
property owner meets the standard for all the species covered by the 
agreement. When designing a multi-species CCAA, we must have sufficient 
information regarding the species, their habitat and other needs; 
specific threats; and the conservation measures that can reasonably be 
expected to address those threats (that are under the control of the 
property owner) before including that species in the agreement.
    Comment (3): Another commenter stated that the term ``status'' was 
unclear--did the FWS intend it to mean the status of the species as a 
whole, or the status of the covered species' population found on the 
site covered by the CCAA? Depending on which is meant, the conservation 
bar could be quite high or quite low.
    Our Response: The term ``status'' in the definition of ``net 
conservation benefit'' refers to the status of the population on the 
enrolled property. While it is the overall goal of CCAAs and the 
Services' candidate program to improve the species' status as a whole, 
it would be unrealistic to expect, in most cases, that one CCAA would 
significantly improve the status of the entire species (unless a single 
enrolled property contains the majority of a species' populations and 
habitat).
    Comment (4): One commenter questioned if the standard meant that a 
CCAA that is designed only to ``stabilize populations'' will never be 
approved or whether a CCAA that is designed only to preserve habitat 
would be approved. Another commenter recommended that the Services 
expand the definition of ``net conservation benefit'' to include 
consideration of measures that preserve habitat and populations, and 
measures that avoid or minimize incidental take. An additional 
commenter stated that any final CCAA rule or policy should also clarify 
that, when species and habitat are already effectively managed on a 
particular property, a CCAA could be appropriate even where no 
improvement of habitat quality or population increase can be 
anticipated to occur on the enrolled property, because such improvement 
is unnecessary. Another commenter stated that requiring an increase in 
population or improvement of habitat sets too high a threshold for CCAA 
approval and fails to recognize that the status of a species can be 
improved in other ways. For example, there will be benefits to the 
species associated with actions that remove, reduce, or minimize 
threats; prevent or limit habitat degradation; promote resiliency; or 
otherwise slow or stabilize a declining population trajectory.
    Our Response: As stated in the definition of ``net conservation 
benefit,'' ``In the case where the species and habitat is already 
adequately managed to the benefit of the species, a net conservation 
benefit will be achieved when the property owner commits to continuing 
to manage the species for a specified period of time, including 
addressing any future threats that are under the property owner's 
control, with the anticipation that the population will increase or 
habitat quality will improve.'' Thus, CCAAs that are designed to 
preserve habitat could be approved under the revised policy, as long as 
the property owners continued to manage their property for the species 
and addressed likely future threats that are under their control. In 
addition, CCAAs that are designed to ``stabilize populations'' could 
also be approved because, in order to stabilize a population, any 
threats to the covered species would need to be addressed by 
conservation measures included in the CCAA. Also, see our response 
below to Comment (5).
    Comment (5): Several commenters indicated that the FWS should not 
delete the phrase ``preclusion or removal of any need to list''--
believing this change suggests that the purpose of CCAAs and the policy 
is no longer to preclude or remove the need to list a species. The 
potential for a CCAA to preclude listing is a significant incentive for 
property owners to participate in it.
    Our Response: Any conservation plan that provides a net 
conservation benefit to the candidate species will contribute to 
precluding the need to list the species. However, we have found that 
including that phrase in our issuance criterion has been problematic--
it is a confusing and difficult standard for both our field 
practitioners and participating landowners to apply to an individual 
conservation plan, and it creates an expectation for an outcome that is 
often not achievable for wide-ranging species or those that face 
threats not easily addressed by improved land management. Our objective 
in revising the issuance criterion is to simplify the conservation 
objective so that CCAAs can be developed and approved more quickly, 
while maintaining undiminished the primary incentive for entering into 
a CCAA: No Surprises assurances that, regardless of the listing 
determination, ensure that managing in accordance with the CCAA will be 
accepted by the Services as fully ESA compliant, with no additional 
obligations to the landowner. Also see our response to Comment (3) 
above.
    Comment (6): A few commenters believed that a net-conservation-
benefit standard was inappropriate for prelisting agreements and is 
ambiguous. They expressed that, given the successes already seen with 
the current CCAA policy, the FWS should just streamline the CCAA 
process and improve efficiencies in the approval of CCAAs rather than 
changing the standard. One commenter further stated that the changes 
are not needed because the very nature of the existing regulations and 
policy already establish principles of avoid, minimize, and/or mitigate 
that achieve demonstrated outcomes. Several commenters recommended that 
the Services withdraw the proposed rule and policy.
    Our Response: The Services redefined the standard to require a net-
conservation-benefit to eliminate confusion associated with the 
existing standard. We disagree that it is ambiguous or inappropriate, 
and believe the net-conservation-benefit standard is easier for the 
public and Service staff to understand. In addition, the Services 
believe clarifying the standard, which had been confusing to the 
public, should be a significant step toward streamlining and achieving 
efficiency in the CCAA approval process.
    Comment (7): A couple of commenters stated that the FWS cannot 
require property owners to reduce or eliminate unknown or speculative 
threats. One commenter believed the definition grants the FWS unlimited 
authority to require ``specific conservation measures'' for future, 
undetermined threats in order to increase a species' population or 
improve its habitat. The current CCAA policy already outlines 
mechanisms that will address anticipated and unanticipated changes in 
circumstances through its use of adaptive management and the ability to 
address unforeseen circumstances. Because these mechanisms already 
exist, the Services should not burden property owners with managing for 
unknown or speculative threats.

[[Page 95167]]

    Our Response: We do not require or expect property owners to 
address unknown or speculative threats in order for us to approve their 
conservation agreements, which are themselves voluntary undertakings; 
rather, property owners need to address future threats that are 
reasonably certain to occur, based on local conditions and the best 
available scientific information. While the current and revised policy 
includes provisions for changed and unforeseen circumstances and 
requires a CCAA to apply adaptive management, it is important to 
explicitly include a reference to future threats in the net-
conservation-benefit standard. Managing for these types of future 
threats will allow us to make progress toward the goal of improving the 
species' status in the face of current threats and those future threats 
that are reasonably certain to occur within the duration of the 
agreement.
    Comment (8): One commenter questioned the utility and benefit of 
re-designing the CCAA to be more similar to Safe Harbor Agreements 
(SHAs). They noted that a CCAA, in combination with other CCAAs in the 
range of a species, will preclude the need to list. SHAs, while 
important, do not act as a recovery tool by themselves. The commenter 
also believes the SHA standard for recovery ``lift'' can be quite small 
and in practice is a lower standard than those set by CCAAs. Another 
commenter believes the Services' proposal to apply the standard ``net 
conservation benefit'' to CCAAs with a different definition than in the 
Safe Harbor policy creates a confusing situation in which CCAAs 
substantively are both similar but yet different from SHAs. Although 
the Services have proposed to apply the same standard, it has defined 
the two terms differently. In addition, another commenter noted that 
the definition of ``net conservation benefit'' in the proposed policy 
is not consistent with its definition in other FWS policies and 
regulations such as the definition of net conservation gain used in the 
Greater Sage-Grouse Range-Wide Mitigation Framework (2014).
    Our Response: Both CCAAs and SHAs are designed to provide 
incentives to property owners to restore, enhance, or maintain habitats 
and/or populations of candidate species or listed species, 
respectively, in a manner that results in a net conservation benefit to 
these species. We agree that the slightly different definition of ``net 
conservation benefit'' that was proposed for CCAAs is confusing, and we 
are aligning the definition in our final rule and policy to that of our 
longstanding definition of ``net conservation benefit'' in the SHA 
context to remove this inconsistency and confusion.
    Comment (9): One commenter requested that the FWS narrow the scope 
of the definition of ``net conservation benefit'' to provide landowners 
more certainty. That commenter and another stated that there was no 
explanation as to what level of ``increase'' would be required to 
approve CCAAs.
    Our Response: While net conservation benefits must contribute, 
directly or indirectly, to the conservation of the covered species, we 
purposely did not specify a level of increase that would be required. 
It would be extremely difficult to broadly define a level of increase 
for all CCAAs because CCAAs vary in what species and habitat they cover 
and the scope of the agreement. We defined a net conservation benefit 
in terms of addressing key threats on the enrolled property, and each 
CCAA uses conservation measures that are designed to specifically 
address those particular threats. The way in which species respond to 
the elimination of a single or multiple threats can vary dramatically 
based on the type and severity of a threat and the life history of the 
species.
    Comment (10): One commenter stated that the new standard subjects 
efforts aimed at precluding a listing to a standard that is appropriate 
only for species already listed, sending the wrong signal to property 
owners and discouraging prelisting conservation. To require a 
``recovery'' standard for a species that is not yet listed and may 
never need to be listed is inconsistent with the intended purpose of 
CCAAs.
    Our Response: As noted in the response to Comment (8) above, the 
goals of both CCAAs and SHAs are to incentivize property owners to 
restore, enhance, or maintain habitats and/or populations of candidate 
species or listed species, respectively, in a manner that results in a 
net conservation benefit to these species. Seeking to improve the 
status of a species or its habitat is the most logical and appropriate 
objective for a conservation agreement, whether for a candidate species 
or a listed species.
    Comment (11): One commenter thought the proposed changes would 
discourage rather than encourage voluntary conservation measures. Under 
the existing framework, property owners need to show that the voluntary 
conservation measures provided for in the CCAA will not worsen a 
species' situation. Under the proposed framework, landowners will need 
to demonstrate the conservation measures will improve the species' 
situation.
    Our Response: It appears that the commenter did not understand that 
the goal of the 1999 policy was to benefit the species to the extent 
that listing was not necessary. In our experience with CCAAs since 
1999, reaching this goal required that CCAAs improve the status of the 
covered species and not just prevent the species' status from 
declining.
    Comment (12): One commenter also noted that the introduction of a 
net-conservation-benefit standard is unsupported by statutory authority 
and goes beyond the scope of the ESA.
    Our Response: As stated in the response to comments on the 1999 
policy (for our full response, see Issue 7; 64 FR 32729, June 17, 
1999), sections 2, 7, and 10 of the ESA allow the implementation of 
this policy. As stated in the 1999 policy, for example, section 2 
states that ``encouraging the States and other interested parties 
through Federal financial assistance and a system of incentives, to 
develop and maintain conservation programs * * * is a key * * * to 
better safeguarding, for the benefit of all citizens, the Nation's 
heritage in fish, wildlife, and plants.'' Establishing a program for 
the development of CCAAs provides an excellent incentive to encourage 
conservation of the Nation's fish and wildlife. Section 7 requires the 
Services to review programs they administer and to ``utilize such 
programs in furtherance of the purposes of this Act.'' In establishing 
this policy, the Services are utilizing their Candidate Conservation 
Programs to further the conservation of the Nation's fish and wildlife. 
Of particular relevance is section 10(a)(1), which authorizes the 
issuance of permits to ``enhance the survival'' of a listed species. 
This interpretation of the Act is also true of this revised policy 
because we are not changing the overall goals or requirements of CCAAs. 
Although we are revising our policy and regulations to adopt the ``net 
conservation benefit'' standard, this revision does not substantively 
change the amount of conservation required to approve a CCAA. Rather, 
our purpose in making this change is to address confusion over the 
original CCAA standard and to make the CCAA standard consistent with 
the SHA standard.
    Comment (13): One commenter stated that the net conservation 
benefit concept is predicated on the assumption, and potential 
requirement, that the success of a CCAA will be based upon an increase 
in species' populations or improvement in habitat. Because many other 
critical factors, such as weather patterns, food sources,

[[Page 95168]]

and disease, can have a major influence on species' populations, it is 
impractical to use population increase as a goal or metric for the 
success of a CCAA.
    Our Response: We agree with the commenter that many factors 
influence a species' populations. CCAAs are designed to address key 
threats to a species and only include those actions that a property 
owner can take on their enrolled property. As long as the CCAA results 
in a net conservation benefit, the Service may approve the CCAA and 
issue the accompanying section 10(a)(1)(A) enhancement-of-survival 
permit. In addition, because we are not able to always monitor 
population sizes, particularly for cryptic species, habitat condition 
can serve as a surrogate to determine whether there will be a net 
conservation benefit to the species. Thus, in the revised policy, we 
are using either an increase in the species' population or an 
improvement in its habitat to determine how to evaluate the success of 
a CCAA.
    Comment (14): One commenter believed the ``net conservation 
benefit'' standard was overly narrow and does not afford property 
owners flexibility in developing CCAAs tailored to their own needs and 
the needs of individual species. The policy should allow property 
owners to develop conservation measures tailored to their individual 
needs and the needs of the covered species.
    Our Response: While we agree that each CCAA will be tailored to a 
particular property, the conservation measures in a CCAA will be based 
on the needs of the species and any key threats that are affecting the 
species on that property that are under the control of the property 
owner. Ongoing management activities on the property must be agreed to 
by the property owner and the Service and described in the CCAA.
    Comment (15): A few commenters noted that the definition of ``net 
conservation benefit'' is also confusing because it does not 
consistently identify whether improvements in both populations and 
habitat must be anticipated to occur. The draft revised policy defines 
``net conservation benefit'' as ``the cumulative benefits of specific 
conservation measures designed to improve the status of a covered 
species by . . . increasing its numbers and improving its habitat.'' 
The draft revised policy, however, then explains that benefit is 
measured ``by the projected increase in the species' population or 
improvement of the species' habitat.'' One commenter requested that the 
Services clarify whether the FWS will approve a CCAA if there is a 
``projected improvement of the species habitat,'' even if there is no 
``projected increase in the species population,'' and vice versa.
    Our Response: We agree with the commenter that we were inconsistent 
in how we defined ``net conservation benefit'' in different sections of 
the policy. We have revised the policy so that it is clear that the 
anticipated improvements can be in either the species' populations or 
in its habitat, or both.
    Comment (16): One commenter suggested that the FWS should utilize a 
CCAA standard that focuses on incentivizing voluntary participation and 
enhancing covered species by providing measures that will 
``beneficially contribute to the conservation of a species or 
habitat.'' This standard is more consistent with the intent and purpose 
of CCAAs and provides for an appropriate measure of positive 
contributions to species conservation.
    Our Response: The recommended language, ``beneficially 
contribute,'' may not result in an appropriate level of benefit to a 
species we are seeking to achieve under a CCAA. CCAAs are designed to 
provide incentives to landowners to undertake voluntary conservation 
efforts to benefit candidate species and species likely to become 
candidates or proposed for listing in the near future. The ``net 
conservation benefit'' standard establishes that conservation efforts 
must contribute, directly or indirectly, to the conservation of the 
covered species and must be designed to reduce or eliminate threats on 
an enrolled property. Conservation benefits may 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.
    Comment (17): One commenter believed the net-conservation-benefit 
standard undermines the assurances provided in CCAAs because the 
standard raises the question of whether a failure to achieve expected 
conservation benefits affects the assurances provided in the associated 
enhancement-of-survival permit. The policy should not allow the 
Services to modify the terms of CCAAs or nullify the assurances 
provided in a permit if the CCAA's expected benefits are not achieved.
    Our response: The assurances are based on the property owner 
implementing the agreed-to conservation measures and the monitoring or 
other requirements in the CCAA and are not tied to whether the CCAA 
reaches the expected net conservation benefit; the assurances are 
necessary only if the covered species is listed. While each CCAA is 
based on the best scientific information available and we expect 
implementation of the CCAA's conservation measures will result in the 
improvement of the species' populations or habitat, it is possible that 
the benefit may not be achieved. The adaptive-management features in a 
CCAA can help to address these situations. In any event, the assurances 
provided to the property owner are not affected if the species or 
habitat does not achieve the expected response from the implemented 
conservation measures.
    Comment (18): One commenter thought the inclusion of the phrase 
``cumulative benefits'' in the definition of ``net conservation 
benefit'' creates ambiguity and suggests that the net conservation 
benefit determination could depend on actions occurring on other 
properties that are outside the control of the participant. Thus, the 
FWS should clarify this term in the definition. The commenter suggested 
we modify the definition to: ``totality of qualitative and quantitative 
benefits from implementation of specific conservation measures 
identified in the CCAA on the property or properties to be enrolled.''
    Our Response: The net conservation benefit determination is made 
based only on actions that are taken under the CCAA and does not 
include those actions that are outside the control of the property 
owner enrolled in a CCAA. This is one of the reasons why we removed the 
phrase ``other necessary properties'' from the policy and regulations. 
The focus is on the key threats on the property and the ability of the 
property owner to address those threats. For these reasons, we did not 
modify the definition as recommended.
    Comment (19): One commenter thought that the term ``specified 
period of time'' is problematic because it suggests that permittees or 
participants must manage the species for a period longer than their 
participation in the CCAA, such as the duration of a project or the 
duration of the impacts. The Services cannot obligate participants to 
commit to manage the species for a period longer than their 
participation in the CCAA.
    Our Response: A participant in a CCAA is required to manage for the

[[Page 95169]]

species, as agreed to in the CCAA, only for the length of the 
agreement. At the end of that time, the participant may choose to end 
the CCAA and not continue the conservation measures. We used the term 
``specified period of time'' to refer to the fact that CCAAs do expire 
and are valid only for a specified time period, unless the participant 
chooses to renew the agreement and the Service agrees to renew the 
CCAA.
    Comment (20): One commenter expressed concern that it is difficult 
to determine whether management activities are equivalent to 
``conservation measures'' or whether they reflect different types of 
actions. To avoid confusion, the commenter requested that the Services 
eliminate the terms ``management actions'' and ``management 
activities.'' Another commenter thought the FWS should clarify the 
scope of activities that may qualify for incidental take coverage under 
a CCAA, i.e., better define what property-management activities could 
be covered, and suggested the language be revised to state: ``property-
management actions include, but are not limited, to agricultural, 
ranching, or forestry activities.''
    Our Response: The terms ``management activities'' and 
``conservation measures'' reflect different types of actions. 
Conservation measures are those actions specified in the CCAA that are 
to be implemented in order to address the threats to the species. 
Management activities are those actions that a property owner does to 
manage their property for ranching, agricultural, or forestry purposes. 
A CCAA and the associated ESA section 10(a)(1)(a) enhancement-of-
survival permit do not require management actions, but the permit can 
provide incidental take coverage for these actions, should the species 
become listed. We do not agree that the language should be revised to 
expand the types of property-management actions without limits. Some 
types of activities such as adding housing developments, mining, or 
other energy-development activities, are inappropriate for CCAAs.
    Comment (21): One commenter stated that the FWS should acknowledge 
that CCAA measures be based upon what is economically and 
technologically feasible for the property owner to implement on the 
enrolled property.
    Our Response: While the primary basis for determining which 
conservation measures are needed on a property is the nature of the 
threats to the species on the property, these are voluntary 
conservation agreements, and the conservation measures agreed to by 
participating landowners will obviously be accepted by the landowner as 
economically and technologically feasible to implement.
    Comment (22): A commenter disagreed with the proposed language in 
Part 5 of the draft revised policy that would require incidental take 
permits to specify the ``number of individuals of the covered species 
or quantity of habitat'' that may be incidentally taken under a permit. 
The commenter believes the Services should not suggest that habitat 
modification necessarily results in incidental take or that habitat is 
the only surrogate available to estimate incidental take.
    Our Response: It is necessary for incidental take permits to 
specify a number of individuals authorized to be taken and that it is 
sometimes appropriate to use the quantity of habitat as a surrogate 
measure of take. Property owners need certainty in regard to how the 
take, should it occur through implementation of their property 
management as described in their agreement, will be exempted through 
the incidental take permit, if the species is eventually listed under 
the ESA.
    Comment (23): A few commenters suggested that the policy should 
specify that additional lands may be enrolled in a programmatic CCAA 
after the effective date of a rule listing a species covered by the 
CCAA, so long as the lands are within the area covered by the CCAA and 
permit.
    Our Response: This comment is beyond the scope of what we proposed 
to change in the policy.
    Comment (24): One commenter stated that the policy needs to clarify 
which species can be included in a CCAA since it includes two different 
definitions of ``candidate species'' and also defines ``covered 
species'' differently from either of the Services' definitions of 
``candidate species.'' The commenter recommended that the policy make 
it clear that CCAAs may be used for at-risk species, whether or not 
they have achieved ``candidate'' status.
    Our Response: We do not think it is necessary to further clarify 
which species can be included in a CCAA; the policy is that species 
proposed for listing, candidates for listing (based on either the FWS 
or NMFS definition), and other at-risk species that may become 
candidates for listing can be included in a CCAA. We included the two 
definitions of ``candidate species'' because the FWS and NMFS have 
different definitions. We do note that we revised the policy to include 
other at-risk species that may become candidates; the policy now 
includes the phrase ``other at-risk species that are likely to become 
candidates.''
    Comment (25): One commenter thought the revocation provision needs 
to be clarified. In Part 5, the proposed policy states that the FWS 
``is prepared as a last resort to revoke a permit implementing a CCAA 
where continuation of the permitted activity would be likely to result 
in jeopardy to a species covered by the permit.'' In view of the fact 
that an enhancement-of-survival permit will be issued based on a 
projection of what the implementation of a CCAA can reasonably be 
expected to achieve in terms of an increase in a species' population or 
an improvement in habitat, FWS needs to make clear that a permit will 
not be revoked simply because, notwithstanding the property owner's 
full compliance with the CCAA, the projected benefits are not achieved.
    Our Response: The policy is clear regarding that a permit 
associated with a CCAA could be revoked as a last resort when the 
permitted activity is determined to be likely to jeopardize the 
continued existence of a species covered by the permit. We will not 
revoke a permit simply because the conservation measures implemented 
through the CCAA fail to achieve the expected benefits to the species 
or its habitat despite the property owner's compliance with the 
provisions in the CCAA.
    Comment (26): All of the commenters who submitted a comment on the 
proposed revisions to the definition of ``property owner'' supported 
the revision.
    Our Response: We are pleased that the comments support this 
revision that clarifies that entities owning leasehold interests in 
non-Federal property may participate in CCAAs, as long as they have the 
authority to carry out the terms of CCAAs on their enrolled properties. 
This revision aligns the policy with the corresponding regulations for 
CCAAs.
    Comment (27): Although all commenters agreed with the proposed 
definition of ``property owner'', a few commenters also suggested that 
the FWS further revise the definition of ``property owner'' to allow 
CCAAs on land or water under Federal ownership or control.
    Our Response: CCAAs are not appropriate for land or water under 
Federal ownership or control. Under section 7(a)(1) of the ESA, Federal 
agencies are required to utilize their authorities in ``furtherance of 
the purposes of this Act by carrying out programs for the conservation 
of endangered species and threatened species.'' However, a property 
owner could also enter into a Candidate

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Conservation Agreement without assurances with the Federal agency and 
carry out the same conservation actions on the Federal land that they 
are taking under a CCAA on their own property.
    Comment (28): One commenter requested that the reference to an 
``up-to-date conservation strategy'' be deleted because it is vague and 
redundant since the policy already states that the CCAA measures will 
be based on the ``best available scientific information.'' Another 
commenter requested that the FWS clarify what a conservation strategy 
is--whether they are formal documents that supplement a CCAA or just 
components of a CCAA.
    Our Response: A species conservation strategy is a planning tool 
that: Includes an overall goal, objectives, and criteria for obtaining 
the goal; outlines the species' current condition and threats to that 
species; identifies and prioritizes conservation measures designed to 
address the threats and the partners that will implement the measures; 
identifies any science needs; and outlines the monitoring needed to 
determine if the conservation measures were implemented and successful 
in addressing the threats. A conservation strategy is not a component 
of a CCAA or a step in the CCAA process but is used to help plan and 
develop a CCAA and other types of agreements.
    Comment (29): Several commenters thought the Services should 
include more recognition for the roles and responsibilities of State 
fish and wildlife agencies and the Services should enhance coordination 
with State agencies. A commenter pointed out that States often provide 
specific measures for avoiding take of State-listed species, and issue 
permits that contain required minimization and mitigation measures. It 
is, therefore, critical that the FWS coordinates with States when 
developing CCAAs. One commenter opposed the Services' proposal to 
delete the requirement that the Services develop CCAAs in ``close'' 
coordination with State agencies from Part 1 of the policy. Another 
commenter indicated that the policy should not include ``when 
appropriate'' when referring to coordination with the affected State 
fish and wildlife agency and any affected Tribal government.
    Our Response: We agree that it is critical that the Services 
coordinate with States when developing CCAAs since States generally 
have jurisdiction over unlisted species and for the reasons stated by 
the commenters. Also in many instances State agencies administer 
programmatic CCAAs, ensuring close coordination. Our interagency policy 
regarding the role of State agencies in ESA activities (81 FR 8663, 
February 22, 2016) establishes that we will work collaboratively with 
State agencies to design and encourage the use of CCAAs. We have 
revised the policy by deleting the phrase ``when appropriate,'' as 
suggested by the commenter.
    Comment (30): A couple of commenters recommended that the FWS also 
focus attention to Candidate Conservation Agreements (CCAs) and revise 
its CCA policy and regulations to provide a basis for a Federal agency 
to seek to enter into a CCA and to facilitate development of agreements 
covering activities conducted jointly on lands in mixed government and 
private ownership.
    Our Response: While we do not have a separate policy or regulations 
for CCAs, they play an important role in the conservation of species 
and have been the basis for a number of FWS decisions not to list a 
particular species. It is important for Federal agencies to work with 
non-Federal property owners to develop agreements that complement CCAAs 
so that there is seamless implementation of species-specific 
conservation measures across non-Federal and Federal lands for those 
species that inhabit multiple ownership lands.
    Comment (31): One commenter suggested adding the crux of the 
definition ``that improves the status of the covered species'' after 
every mention in the policy of ``net conservation benefit'' to provide 
more clarity on the requirements of a CCAA since the commenter believes 
that staff biologists, CCAA applicants, or consultants will not utilize 
the definitions section of the policy. This commenter also recommended 
inserting ``the CCAA's'' before ``specific conservation measures'' to 
prevent the potential misunderstanding of ``cumulative benefits'' to 
mean those other than ones associated with the CCAA.
    Our Response: We agree that the suggested edits will help to 
clarify the intent of the policy; we have revised the policy 
accordingly.

Candidate Conservation Agreements With Assurances Policy

Part 1. What is the purpose of the policy?

    This policy is intended to facilitate the conservation of species 
proposed for listing under the Endangered Species Act (ESA) and 
candidate species, and species that may become candidates or proposed 
for listing in the near future, by giving non-Federal property owners, 
such as individuals, States, local governments, Tribes, businesses, and 
organizations, incentives to implement conservation measures for 
declining species by providing regulatory assurances with regard to 
land, water, or resource use restrictions that might otherwise apply 
should the species later become listed as endangered or threatened 
under the ESA. Under the policy, property owners who commit in a 
Candidate Conservation Agreement with Assurances (CCAA or Agreement) to 
implement mutually agreed-upon conservation measures for a species 
proposed for listing or a candidate species, or a species that may 
become a candidate or proposed for listing in the near future, will 
receive assurances from the Service that additional conservation 
measures above and beyond those contained in the Agreement will not be 
required, and that additional land, water, or resource use restrictions 
will not be imposed upon them should the species become listed in the 
future. In determining whether to enter into a CCAA, the Service will 
consider the extent to which the Agreement reduces key threats to the 
covered species so as to contribute to the conservation and 
stabilization of populations or habitat of the species and provides a 
substantial net conservation benefit.
    The overall goal of the Service's candidate conservation program is 
to encourage the public to voluntarily develop and implement 
conservation plans for declining species prior to them being listed 
under the ESA. The benefits of such conservation actions may contribute 
to not needing to list a species, to list a species as threatened 
instead of endangered, or to accelerate the species' recovery if it is 
listed. Candidate Conservation Agreements with Assurances are one 
conservation tool that can contribute toward this goal. While the 
Services recognize that the actions of a single property owner usually 
will not sufficiently contribute to the conservation of the species to 
remove the need to list it, we also recognize that the collective 
result of the conservation measures of many property owners may result 
in not needing to list the species or other benefits mentioned above. 
Accordingly, the Service will enter into an Agreement when we determine 
that the conservation measures to be implemented address the key 
current and anticipated likely future threats that are under the 
property owner's control and will result in a net conservation benefit 
to and improve the status of the covered species. While some property 
owners are willing to manage their lands to benefit species proposed 
for listing, candidate species,

[[Page 95171]]

or species that may become candidates or proposed for listing in the 
near future, most desire some degree of regulatory certainty and 
assurances with regard to possible future land, water, or resource use 
limitations that may be imposed if the species is listed in the future.
    The Service will provide regulatory assurances to a non-Federal 
property owner who enters into a CCAA by authorizing, through issuance 
of an enhancement-of-survival permit under section 10(a)(1)(A) of the 
ESA, a specified level of incidental take of the covered species. 
Incidental take authorization and the associated agreement benefit 
property owners in two ways. First, in the event the species is listed, 
incidental take authorization enables property owners to continue 
existing and agreed-upon land uses that have the potential to cause 
take, provided the property owner is properly implementing the CCAA. 
Second, the property owner is provided the assurance that, if the 
species is listed, no additional conservation measures will be required 
and no additional land-use restrictions will be imposed.
    These Agreements will be developed in coordination and cooperation 
with appropriate State fish and wildlife agencies and other affected 
State agencies and Tribes. Coordination with State fish and wildlife 
agencies is particularly important given their primary responsibilities 
and authorities for the management of unlisted resident species. These 
Agreements must be consistent with applicable State laws and 
regulations governing the management of these species.
    The Service must determine that the benefits of the conservation 
measures to be implemented by a property owner under a CCAA are 
reasonably expected to improve the status of and result in a net 
conservation benefit to the covered species. Pursuant to section 7 of 
the ESA, the Service must also ensure that the conservation measures 
and ongoing property-management activities included in a CCAA, and the 
incidental take allowed under the enhancement of survival section 
10(a)(1)(A) permit for these measures and activities, are not likely to 
jeopardize listed species or species proposed for listing and are not 
likely to destroy or adversely modify proposed or designated critical 
habitat.
    Because some property owners may not have the necessary resources 
or expertise to develop a CCAA, the Services are committed to 
providing, to the maximum extent practicable given available resources, 
the necessary technical assistance to develop Agreements and prepare 
enhancement-of-survival permit applications. Also, based on available 
resources, the Services may assist or train property owners to 
implement conservation measures. Development of a biologically sound 
Agreement and enhancement-of-survival permit application is intricately 
linked. The Services will process the permit application following the 
procedures described in 50 CFR 17.22(d)(1) and 17.32(d)(1), and part 
222, as appropriate. All terms and conditions of the permit must be 
consistent with the specific conservation measures included in the 
associated CCAA.

Part 2. What definitions apply to this policy?

    The following definitions apply for the purposes of this policy.
    Candidate Conservation Agreement (CCA) means an agreement signed by 
either Service, or both Services jointly, and other Federal or State 
agencies, local governments, Tribes, businesses, organizations, or a 
citizen that identifies specific conservation measures that the 
participants will voluntarily undertake to conserve the covered 
species. There are no specific requirements for entering into a CCA and 
no standard has to be met; no incidental take permit or assurances are 
provided under these Agreements.
    Candidate Conservation Agreement with Assurances means a Candidate 
Conservation Agreement with a non-Federal property owner that meets the 
standards described in this policy and provides the property owner with 
the assurances described in this policy.
    Candidate Conservation Assurances mean the associated assurances 
that are authorized by an enhancement-of-survival permit. Such 
assurances may apply to a whole parcel of land, or a portion, as 
identified in the Agreement. The assurances provided to a non-Federal 
property owner in a CCAA are that no additional conservation measures 
and no land, water, or resource use restrictions, in addition to the 
measures and restrictions described in the Agreement, will be imposed 
should the covered species become listed in the future. In addition, 
the enhancement-of-survival permit provides a prescribed level of 
incidental take that may occur from agreed-upon, ongoing property-
management actions and the conservation measures.
    Candidate species are defined differently by the Services. The U.S. 
Fish and Wildlife Service (FWS) defines ``candidate species'' as 
species for which FWS has sufficient information on file relative to 
status and threats to support issuance of proposed listing rules. The 
National Marine Fisheries Service (NMFS) defines ``candidate species'' 
as (1) species that are the subject of a petition to list and for which 
NMFS has determined that listing may be warranted, pursuant to section 
4(b)(3)(A) of the ESA, and (2) species that are not the subject of a 
petition but for which NMFS has announced the initiation of a status 
review in the Federal Register. The term ``candidate species'' used in 
this policy refers to those species designated as candidates by either 
of the Services.
    Conservation measures as it applies to CCAAs are actions that a 
property owner voluntarily agrees to undertake when entering into a 
CCAA that, by addressing the threats that are occurring or have the 
potential to occur on their property, will result in an improvement in 
the species' populations or an improvement or expansion of the species' 
habitat with the potential for an improvement in the species' 
population. The appropriate conservation measures designed to address 
the threats that are causing the species to decline will be based on 
the best available scientific information relative to the conservation 
needs of the species such as those contained in an up-to-date 
conservation strategy.
    Covered species means those species that are the subject of a CCAA 
and associated enhancement-of-survival permit. Covered species are 
limited to species that are candidates or proposed for listing and 
species that may become candidates or proposed for listing in the near 
future.
    Enhancement-of-survival permit means a permit issued under section 
10(a)(1)(A) of the ESA that, as related to this policy, authorizes the 
permittee to incidentally take species covered in a CCAA should the 
species be listed in the future.
    Net conservation benefit (for CCAA) is defined as the cumulative 
benefits of the CCAA's specific conservation measures designed to 
improve the status of a covered species by removing or minimizing 
threats so that populations are stabilized, the number of individuals 
is increased, or habitat is improved. The benefit is measured by the 
projected increase in the species' population or improvement of the 
species' habitat, taking into account the duration of the Agreement and 
any off-setting adverse effects attributable to the incidental taking 
allowed by the enhancement-of-survival permit. The conservation 
measures and property-management activities covered by the agreement 
must be designed to reduce or eliminate those key current and likely 
future threats on the property that are under

[[Page 95172]]

the property owner's control in order to increase the species' 
populations or improve its habitat. In the case where the species and 
habitat are already adequately managed to the benefit of the species, a 
net conservation benefit will be achieved when the property owner 
commits to continuing to manage the species for a specified period of 
time, including addressing any likely future threats that are under the 
property owner's control, with the anticipation that the population 
will increase or habitat quality will improve.
    Property owner means a person with a fee simple, leasehold, or 
other property interest (including owners of water rights or other 
natural resources), or any other entity that may have a property 
interest, sufficient to carry out the proposed management activities, 
subject to applicable State law, on non-Federal land.

Part 3. What are Candidate Conservation Agreements with Assurances?

    A CCAA will identify or include:
    A. The population levels (if available or determinable) of the 
covered species existing at the time the parties sign the Agreement; 
the existing habitat characteristics that sustain any current, 
permanent, or seasonal use, or potential use by the covered species on 
lands or waters in which the participating property owner has an 
interest; and consideration of the existing and anticipated condition 
of the landscape of the contiguous lands or waters not on the 
participating owner's property so that the property enrolled in a CCAA 
may serve as a habitat corridor or connector or as a potential source 
of the covered species to populate the enrolled property if they do not 
already exist on that property.
    B. The conservation measures the participating property owner 
agrees to undertake to address specific threats identified in order to 
conserve the species included in the Agreement.
    C. The benefits expected to result from the conservation measures 
described in Part 3-B, above (e.g., increase in population numbers; 
enhancement, restoration, or preservation of habitat; removal of 
threats), and from the conditions that the participating property owner 
agrees to maintain. The Service must determine that the benefits of the 
conservation measures implemented by a property owner under a CCAA will 
reasonably be expected to provide a net conservation benefit and to 
improve the status of the covered species.
    D. Assurances related to take of the covered species will be 
authorized by the Service through a section 10(a)(1)(A) enhancement-of-
survival permit (see Part 5). Assurances include that no additional 
conservation measures will be required and no additional land, water, 
or resource use restrictions will be imposed beyond those described in 
Part 3-B, above, should the covered species be listed in the future. If 
conservation measures not provided for in the CCAA are necessary to 
respond to changed circumstances, the Service will not require any 
conservation measures in addition to those provided for in the CCAA 
without the consent of the property owner, provided the CCAA is being 
properly implemented. If additional conservation measures are necessary 
to respond to unforeseen circumstances, the Service may require 
additional measures of the property owner where the CCAA is being 
properly implemented, only if those measures maintain the original 
terms of the CCAA to the maximum extent possible. Additional 
conservation measures will not involve the commitment of additional 
land, water, or financial compensation, or additional restrictions on 
the use of land, water, or other natural resources available for 
development or use under the original terms of the CCAA without the 
consent of the property owner. The permit also allows a prescribed 
amount of incidental take that may result from the conservation 
measures or from the agreed-to ongoing property-management actions.
    E. A monitoring provision that requires measuring and reporting on: 
(1) Progress in implementing the conservation measures described in 
Part 3-B, above, and (2) changes in habitat conditions and the species' 
status resulting from these measures.
    F. As appropriate, a notification requirement to provide the 
Service or appropriate State agencies with a reasonable opportunity to 
rescue individuals of the covered species before any authorized 
incidental take occurs.

Part 4. What are the benefits to the species?

    Before entering into a CCAA, the Service must make a written 
finding that the benefits of the conservation measures to be 
implemented by a property owner under an Agreement would reasonably be 
expected to result in a net conservation benefit to the covered species 
and improve its status. If the Service and the participating property 
owner cannot agree on conservation measures that satisfy this 
requirement, the Service will not enter into the Agreement. Expected 
benefits of the CCAA's specific conservation measures could include, 
but are not limited to: Removal or reduction of current and anticipated 
future key threats for a specified period of time; restoration, 
enhancement, or preservation of habitat; maintenance or increase of 
population numbers; and reduction or elimination of impacts to the 
species from agreed-upon, ongoing property-management actions.

Part 5. What are assurances to property owners?

    Through a CCAA, the Service will provide the assurance that, if any 
species covered by the Agreement is listed, and the Agreement has been 
implemented in good faith by the participating property owner, the 
Service will not require additional conservation measures nor impose 
additional land, water, or resource use restrictions beyond those the 
property owner voluntarily committed to under the terms of the original 
Agreement. Assurances involving incidental take will be authorized 
through issuance of a section 10(a)(1)(A) enhancement-of-survival 
permit, which will allow the property owner to take a specific number 
of individuals of the covered species or quantity of habitat, should 
the species be listed, as long as the level of take is consistent with 
those levels agreed upon and identified in the Agreement. The Service 
will issue an enhancement-of-survival permit at the time of entering 
into the CCAA. This permit will have a delayed effective date tied to 
the date of any future listing of the covered species. The Service is 
prepared as a last resort to revoke a permit implementing a CCAA where 
continuation of the permitted activity would be likely to result in 
jeopardy to a species covered by the permit or adversely modify the 
species' designated critical habitat. Prior to taking such a step, 
however, the Service will first exercise all possible means to remedy 
such a situation.

Part 6. How does the Service comply with the National Environmental 
Policy Act?

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321 et seq.), and the regulations of the Council on 
Environmental Quality (CEQ) require all Federal agencies to examine the 
environmental impacts 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

[[Page 95173]]

based on an understanding of environmental consequences. Federal 
agencies can satisfy NEPA requirements either by preparing an 
Environmental Assessment (EA) or Environmental Impact Statement (EIS) 
or by showing that the proposed action is categorically excluded from 
individual NEPA analysis. The Service will review each proposed CCAA 
and associated enhancement-of-survival permit application for other 
significant environmental, economic, social, historical or cultural 
impact, or for significant controversy (516 DM 2, Appendix 2 for FWS 
and the National Oceanic and Atmospheric Administration's (NOAA's) NOAA 
Administrative Order 216-A and its authorized Companion Manual for 
NMFS). If the Service determines that the Agreement and permit will 
likely result in any of the above effects, preparation of an EA or EIS 
will be required. General guidance on when the Service excludes an 
action categorically and when and how to prepare an EA or EIS is found 
in 43 CFR part 46 for FWS and NOAA Administrative Order Series 216-6A 
and its authorized Companion Manual for NMFS. The Services expect that 
most CCAAs and associated enhancement-of-survival permits will result 
in minor or negligible effects on the environment and will be 
categorically excluded from individual NEPA analysis.

Part 7. Will there be public review?

    Public participation in the development of a proposed CCAA will be 
provided only when agreed to by the participating property owner. 
However, the Service will make every proposed Agreement available for 
public review and comment as part of the public evaluation process that 
is statutorily required for issuance of the associated enhancement-of-
survival permit. This comment period will generally be 30 days. The 
public will also be given other opportunities to review CCAAs in 
certain cases. For example, when the Service receives an Agreement 
covering a species proposed for listing, and when the Service 
determines, based upon a preliminary evaluation, that the Agreement 
could potentially justify withdrawal of the proposed rule to list the 
species under the ESA, the comment period for the proposed rule will be 
extended or reopened to allow for public comments on the CCAA's 
adequacy in removing or reducing threats to the species. However, the 
statutory deadlines in the ESA may prevent the Service from considering 
in their final listing determination those CCAAs that are not received 
within a reasonable period of time after issuance of the proposed rule.

Part 8. Do property owners retain their discretion?

    Nothing in this policy prevents a participating property owner from 
implementing conservation measures not described in the Agreement, 
provided such measures are consistent with the conservation measures 
and conservation goal described in the CCAA. The Service will provide 
technical advice, to the maximum extent practicable, to the property 
owner when requested. Additionally, a participating property owner can 
terminate the Agreement prior to its expiration date, even if the terms 
and conditions of the Agreement have not been realized. However, the 
property owner is required to notify the Service prior to termination. 
The enhancement-of-survival permit is terminated at the same time, and 
the property owner would no longer have the assurances.

Part 9. What is the discretion of all parties?

    Nothing in this policy compels any party to enter into a CCAA at 
any time. Entering into an Agreement is voluntary for property owners 
and the Service. Unless specifically noted, a CCAA does not otherwise 
create or waive any legal rights of any party to the Agreement.

Part 10. Can agreements be transferred?

    If a property owner who is a party to a CCAA transfers ownership of 
the enrolled property, the Service will regard the new property owner 
as having the same rights and obligations as the original property 
owner if the new property owner agrees to become a party to the 
original Agreement and meets the applicable permit issuance criteria. 
Actions taken by the new participating property owner that result in 
the incidental take of species covered by the Agreement would be 
authorized if the new property owner maintains and properly implements 
the terms and conditions of the original Agreement. If the new property 
owner does not become a party to the Agreement, the new owner would 
neither incur responsibilities nor receive any assurances relative to 
the ESA take prohibitions resulting from listing of the covered 
species. An Agreement must commit the participating property owner to 
notify the Service of any transfer of ownership at the time of the 
transfer of any property subject to the CCAA. This provision allows the 
Service the opportunity to contact the new property owner to explain 
the prior CCAA and to determine whether the new property owner would 
like to continue the Agreement or enter a new Agreement. When a new 
property owner continues an existing Agreement, the Service will honor 
the terms and conditions of that Agreement and associated permit.

Part 11. Is monitoring required?

    The Service will ensure that necessary monitoring provisions are 
included in the CCAA and associated enhancement-of-survival permit. 
Monitoring is necessary to ensure that the conservation measures 
specified in an Agreement and permit are being implemented and to learn 
about the effectiveness of the agreed-upon conservation measures. In 
particular, when adaptive-management principles are included in an 
Agreement, monitoring is especially helpful for obtaining the 
information needed to measure the effectiveness of the conservation 
program and detect changes in conditions. However, the level of effort 
and expense required for monitoring can vary substantially among CCAAs 
depending on the circumstances. For many, monitoring can be conducted 
by the Service or a State agency and may involve only a brief site 
inspection and appropriate documentation. Monitoring programs must be 
agreed upon prior to public review and comment. The Services are 
committed to providing as much technical assistance as possible in the 
development of acceptable monitoring programs. These monitoring 
programs will provide valuable information that the Services can use to 
evaluate program implementation and success.

Part 12. How are cooperation and coordination with the States and 
Tribes described in the policy?

    Coordination between the Service, the appropriate State fish and 
wildlife agencies, affected Tribal governments, and property owners is 
important to the successful development and implementation of CCAAs. 
The Service will coordinate and consult with the affected State fish 
and wildlife agency and any affected Tribal government that has a 
treaty right to any fish or wildlife resources covered by a CCAA.

Required Determinations

    As discussed above, we intend to apply this policy in considering 
whether to approve a CCAA. Below we discuss compliance with several 
Executive Orders and statutes as they pertain to this policy.

[[Page 95174]]

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this policy is 
not a significant rule.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that our regulatory system must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. We have developed this policy in a manner 
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The Chief Counsel for 
Regulation of the Department of Commerce and the Department of Interior 
both certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed policy stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed policy and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis is not required and none was prepared.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the ``Regulatory 
Flexibility Act'' section above, this policy would not ``significantly 
or uniquely'' affect small governments. As explained above, small 
governments could potentially be affected if they chose to enter into a 
CCAA. However, we have determined and certify pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502, that this policy would not impose a 
cost of $100 million or more in any given year on local or State 
governments or private entities.
    (b) This policy would not produce a Federal mandate on State, 
local, or Tribal governments or the private sector of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action''' under the Unfunded Mandates Reform Act. This policy does not 
impose any additional obligations on State, local, or tribal 
governments who participate in a CCAA by requiring them to take 
additional or different conservation measures above what they would be 
required to take under the 1999 CCAA policy. As such, a Small 
Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630, this policy would not 
have significant takings implications. This policy would not pertain to 
``taking'' of private property interests, nor would it directly affect 
private property. A takings implication assessment is not required 
because this policy (1) would not effectively compel a property owner 
to suffer a physical invasion of property and (2) would not deny all 
economically beneficial or productive use of the land or aquatic 
resources. This policy would substantially advance a legitimate 
government interest (clarify existing policy through which non-Federal 
entities may voluntarily help to conserve unlisted and listed species) 
and would not present a barrier to all reasonable and expected 
beneficial use of private property.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this policy 
does not have significant Federalism effects and a federalism summary 
impact statement is not required. This policy revision pertains only to 
the Service's requirement of a net conservation benefit to the covered 
species for approval of a CCAA and would not have substantial direct 
effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
this policy would not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the Order. We are revising 
the existing policy for CCAAs specifically for the purpose of 
eliminating ambiguity and presenting the policy provisions in clear 
language.

Paperwork Reduction Act of 1995 (PRA)

    This policy revision does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the PRA (44 U.S.C. 3501 et seq.). This policy will 
not impose new recordkeeping or reporting requirements on State or 
local governments; individuals; businesses; or organizations. OMB has 
reviewed and approved the application form that property owners use to 
apply for approval of a CCAA and associated enhancement-of-survival 
permit (Form 3-200-54) and assigned OMB control number 1018-0094, which 
expires January 31, 2017. An agency may not conduct or sponsor and a 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    We have analyzed the policy in accordance with the criteria of the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)), the 
Council on Environmental Quality's Regulations for Implementing the 
Procedural Provisions of NEPA (40 CFR 1500-1508), and the Department of 
the Interior's NEPA procedures (516 DM 2 and 8; 43 CFR part 46) and 
NOAA's Administrative Order regarding NEPA compliance (NAO 216-6A 
(April 22,2016)).
    We have determined that the policy is categorically excluded from 
NEPA documentation requirements consistent with 40 CFR 1508.4 and 43 
CFR 46.210(i). This categorical exclusion applies to policies, 
directives, regulations, and guidelines that are ``of an 
administrative, financial, legal, technical, or procedural nature.'' 
This action does not trigger an extraordinary

[[Page 95175]]

circumstance, as outlined in 43 CFR 46.215, applicable to the 
categorical exclusion. Therefore, the policy does not constitute a 
major Federal action significantly affecting the quality of the human 
environment.
    We have also determined that this action satisfies the standards 
for reliance upon a categorical exclusion under NOAA Administrative 
Order (NAO) 216-A. NAO 216-6A superseded NAO 216-6 (May 20, 1999), but 
temporarily left in effect the categorical exclusions in NAO 216-6 
until they are superseded by a Companion Manual authorized under NAO 
216-6A, which has not yet been finalized. Therefore, this policy was 
evaluated under the categorical exclusions in NAO 216-6. Specifically, 
the policy fits within two categorical exclusion provisions in Sec.  
6.03c.3(i)--for ``preparation of regulations, Orders, manuals, or other 
guidance that implement, but do not substantially change these 
documents, or other guidance'' and for ``policy directives, regulations 
and guidelines of an administrative, financial, legal, technical or 
procedural nature.'' NAO 216-6, Sec.  6.03c.3(i). The policy would not 
trigger an exception precluding reliance on the categorical exclusions 
because it does not involve a geographic area with unique 
characteristics, is not the subject of public controversy based on 
potential environmental consequences, will not result in uncertain 
environmental impacts or unique or unknown risks, does not establish a 
precedent or decision in principle about future proposals, will not 
have significant cumulative impacts, and will not have any adverse 
effects upon endangered or threatened species or their habitats. Id. 
Sec.  5.05c. As such, it is categorically excluded from the need to 
prepare an Environmental Assessment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior Manual at 512 DM 2, we have considered possible effects on 
federally recognized Indian tribes and have preliminarily determined 
that there are no potential adverse effects of issuing this policy. Our 
intent with the policy revision is to provide clarity in regard to the 
net conservation benefit requirements for a CCAA to be approved, 
including any agreements in which Tribes may choose to participate. We 
will continue to work with Tribes as we implement this policy.

Energy Supply, Distribution, or Use

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. The policy is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

Authors

    The primary authors of the policy are staff members of the 
Ecological Services Program, Branch of Communications and Candidate 
Conservation, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: 
ES, Falls Church, VA 22041-3803.

Authority

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

    Dated: December 20, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
    Dated: December 20, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-31061 Filed 12-23-16; 8:45 am]
 BILLING CODE 4333-15-P