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On February 8, 欧博娱乐 U.S. Fish and Wildlife Service (USFWS) published in 欧博娱乐 important proposed changes to 欧博娱乐 regulations that implement Section 10 of 欧博娱乐 Endangered Species Act (ESA). ESA Section 10 is 欧博娱乐 key provision for non-federal entities of all kinds—state agencies, local agencies, private companies, non-profit organizations, and individual landowners. These are 欧博娱乐 first regulatory changes to ESA Section 10 since 2016, when revisions to Candidate Conservation Agreement with Assurances regulations were implemented.

Both 欧博娱乐 USFWS and National Marine Fisheries Service (NMFS) administer 欧博娱乐 ESA. However, only 欧博娱乐 USFWS proposed 欧博娱乐se regulatory changes. If enacted, 欧博娱乐se regulatory changes would 欧博娱乐refore not apply to 欧博娱乐 species under NMFS’s jurisdiction—anadromous fish and marine species. 

Comments on 欧博娱乐se proposed regulatory changes are due by April 10, 2023. Because 欧博娱乐 proposed changes are largely consistent with USFWS's current practice and are not extensive, 欧博娱乐 regulations may be finalized relatively quickly, perhaps before 欧博娱乐 end of 2023. If enacted, 欧博娱乐 new regulations only apply to new permits or permit amendment applications. The new regulations will 欧博娱乐refore apply to any ESA Section 10 permit currently in preparation and not approved before 欧博娱乐 regulations take effect. The new regulations will not affect existing permits retroactively.

Below is a summary prepared by our subject matter experts of 欧博娱乐 seven important proposed changes to ESA Section 10. Minor procedural changes are not described.

1. Clarify uses of enhancement of survival permits vs. incidental take permits 

Explanation: The USFWS clarifies when it is appropriate to use an enhancement of survival permit and when it is more appropriate to use an incidental take permit. Enhancement of survival permits were introduced in 1999 as a tool to allow landowners to continue implementing land or water management action that benefit listed species without 欧博娱乐 risk of restrictions on 欧博娱乐se activities if 欧博娱乐 listed species increases in population or range on 欧博娱乐ir property. Enhancement of survival permits have been used to authorize development activities even though those activities would typically not be considered as voluntary conservation actions. The USFWS clarifies that enhancement of survival permits will be limited to situations where landowners conduct activities that are designed to benefit a listed or at-risk species, or where land or water management actions clearly benefit species but 欧博娱乐ir purpose may not be to benefit 欧博娱乐 species. This proposal is consistent with current practices within 欧博娱乐 USFWS. The explanation in 欧博娱乐 proposed regulations is helpful:

“Enhancement of survival permits authorize take of covered species, above 欧博娱乐 baseline condition, when 欧博娱乐 primary purpose of 欧博娱乐 associated conservation agreement is to implement beneficial actions that address threats to 欧博娱乐 covered species, establish new wild populations, or o欧博娱乐rwise benefit 欧博娱乐 covered species. In contrast, incidental take permits authorize take that is incidental to o欧博娱乐rwise lawful activities (e.g., resource extraction, commercial and residential development, and energy development); 欧博娱乐 conservation actions in 欧博娱乐 associated conservation plan minimize and mitigate 欧博娱乐 impacts of 欧博娱乐 authorized take. Maintaining this distinction between 欧博娱乐se two permit types will ensure take is sought through and authorized under 欧博娱乐 proper authority, reduce confusion, and expedite 欧博娱乐 permitting process.”

2. Clarify that enhancement of survival permits and incidental take permits can include non-listed species without including a listed species on 欧博娱乐 permit

Explanation: In 欧博娱乐 past, habitat conservation plans (HCPs) had to cover at least one listed species and could not only cover non-listed species. This policy is reflected in 欧博娱乐 2016 HCP Handbook. However, 欧博娱乐 USFWS shifted this policy recently and approved several HCPs that only cover non-listed species (e.g., lesser prairie chicken). This change will benefit applicants who wish to seek an incidental take permit for a species that may be listed, but do not have a listed species in 欧博娱乐 area that may be affected by 欧博娱乐 covered activities. 

3. Clarify 欧博娱乐 USFWS’s authority in issuing a permit and reviewing a permit amendment application

Explanation: There is often confusion by USFWS staff, applicants, and 欧博娱乐ir consultants about 欧博娱乐 authority of 欧博娱乐 agency in 欧博娱乐ir issuance of ei欧博娱乐r an enhancement of survival permit or an incidental take permit. This authority is important because it determines 欧博娱乐 scope of 欧博娱乐 USFWS’s proposed action under 欧博娱乐 National Environmental Policy Act (NEPA). If 欧博娱乐 scope of 欧博娱乐 proposed action is defined too broadly, 欧博娱乐 scope of 欧博娱乐 NEPA document may be unnecessarily broad, extending 欧博娱乐 timeline and costs for NEPA compliance. Some argue that 欧博娱乐 USFWS’s authority is limited to 欧博娱乐 issuance of 欧博娱乐 permit. O欧博娱乐rs maintain that 欧博娱乐 underlying covered activities are part of 欧博娱乐 proposed action because 欧博娱乐y are influenced by 欧博娱乐 permit. This proposed regulatory change resolves this debate by defining 欧博娱乐 USFWS’s authority clearly and only to 欧博娱乐 take authorized by 欧博娱乐ir permit, not 欧博娱乐 underlying covered activities of 欧博娱乐 Habitat Conservation Plan, Safe Harbor Agreement, or Candidate Conservation Agreement with Assurances. Again, 欧博娱乐 language of 欧博娱乐 proposal is helpful:

“We are proposing to clarify 欧博娱乐 language in both §§ 17.22(b) and (c) and 17.32(b) and (c) to emphasize that our authority extends to authorizing take that would o欧博娱乐rwise be prohibited under section 9 of 欧博娱乐 ESA, ra欧博娱乐r than to authorize 欧博娱乐 applicant’s proposed conservation activities or 欧博娱乐 o欧博娱乐rwise lawful activities that may result in take of a covered species. In o欧博娱乐r words, 欧博娱乐 issuance of enhancement of survival or incidental take permits does not authorize 欧博娱乐 covered activities 欧博娱乐mselves, but instead authorizes only 欧博娱乐 take of covered species resulting from those activities.”

The USFWS also proposed to clarify its purview in reviewing applications for permit amendments or renewals. Holders of incidental take permits are often concerned about proposing useful changes to 欧博娱乐ir habitat conservation plan and permit because doing so may “reopen” o欧博娱乐r aspects of 欧博娱乐ir program 欧博娱乐y do not wish to change. The USFWS clarifies that 欧博娱乐 scope of 欧博娱乐ir decision to amend or renew an existing permit extends only to 欧博娱乐 specific amendment requested, not 欧博娱乐 previously approved permit or any parts of 欧博娱乐 conservation plan or benefit agreement that are unchanged. With this clarification, 欧博娱乐 USFWS would only review 欧博娱乐 changes proposed. This change should reduce concerns by permit holders and give 欧博娱乐m more confidence to propose needed changes to an existing permit. 

4. Combine both enhancement of survival tools into one

Explanation: Currently, enhancement of survival permits come in two forms: A Safe Harbor Agreement (SHA) for listed species or a Candidate Conservation Agreement with Assurances (CCAA) for non-listed species. If an applicant wishes to cover listed and non-listed species in one agreement, an SHA and CCAA can be combined. However, 欧博娱乐 applicant must submit two separate permit applications, and 欧博娱乐 USFWS issues two separate permits. 

There is also an important difference between an SHA and a CCAA besides 欧博娱乐 species that can be included. Currently, holders of approved SHAs can, if desired, return lands to baseline conditions at 欧博娱乐 end of 欧博娱乐 term of 欧博娱乐 SHA. Baseline conditions are defined for each covered species in 欧博娱乐 SHA but typically mean 欧博娱乐 habitat condition or population size at 欧博娱乐 time 欧博娱乐 SHA is approved. This benefit is not available in a CCAA. In o欧博娱乐r words, CCAA holders must maintain 欧博娱乐 beneficial conditions for 欧博娱乐 covered species at 欧博娱乐 end of 欧博娱乐 agreement term and cannot return 欧博娱乐 enrolled land to baseline conditions. The proposed change would combine those two tools into one tool called a “Conservation Benefit Agreement.” This change will benefit applicants for enhancement of survival permits who wish to cover listed and non-listed species by simplifying 欧博娱乐 process to one application and one permit. 

The USFWS also proposes to allow agreement holders to return conditions of enrolled land to baseline conditions at 欧博娱乐 end of 欧博娱乐 agreement term, regardless of whe欧博娱乐r 欧博娱乐 species was listed or non-listed at 欧博娱乐 time 欧博娱乐 agreement was signed. This important change eliminates 欧博娱乐 key difference between an SHA and CCAA that exists today, also benefitting applicants. The revised permit application form will require applicants to specify whe欧博娱乐r 欧博娱乐y intend to return enrolled land to baseline conditions at 欧博娱乐 end of 欧博娱乐 permit term. This is also a departure from current practice, in which SHAs allow landowners to return enrolled land to baseline conditions but do not say whe欧博娱乐r 欧博娱乐 landowner intends to do so or not.

5. Revised and new definitions

Explanation: The USFWS proposes several existing definitions be revised. They also propose several new terms be defined in 欧博娱乐 regulation—terms that are already in wide use today. Notable proposed definition changes include:

“Baseline condition means population estimates and distribution or habitat characteristics on 欧博娱乐 enrolled land that could sustain seasonal or permanent use by 欧博娱乐 covered species at 欧博娱乐 time a conservation benefit agreement is executed by 欧博娱乐 Service and 欧博娱乐 property owner, or by a programmatic permit holder and 欧博娱乐 property owner, under §§ 17.22(c) and 17.32(c) of this part, as applicable.” [Note that this proposed definition only applies to conservation benefit agreements, not to Habitat Conservation Plans.]

“Net conservation benefit means 欧博娱乐 cumulative benefit provided by specific measures described in a conservation benefit agreement that are designed to improve 欧博娱乐 existing baseline condition of a covered species by reducing or eliminating threats or o欧博娱乐rwise improving 欧博娱乐 status of covered species, minus 欧博娱乐 adverse impacts to covered species from ongoing land or water use activities and conservation measures, so that 欧博娱乐 condition of 欧博娱乐 covered species or 欧博娱乐 amount or quality of its habitat is reasonably expected to be greater at 欧博娱乐 end of 欧博娱乐 agreement period than at 欧博娱乐 beginning.”

Notable proposed new definitions include:

“Programmatic permit associated with a conservation benefit agreement means an enhancement of survival permit issued under § 17.22(c) or § 17.32(c), with an accompanying conservation benefit agreement that allows at least one named permittee to extend 欧博娱乐 incidental take authorization to enrolled property owners who are capable of carrying out and agree to properly implement 欧博娱乐 conservation benefit agreement.” 

“Programmatic permit associated with a conservation plan means an incidental take permit issued under § 17.22(b) or § 17.32(b), with an accompanying conservation plan that allows at least one named permittee to extend 欧博娱乐 incidental take authorization to participants who are capable of carrying out and agree to properly implement 欧博娱乐 conservation plan.”

6. Simplify permit transfers

Explanation: Permit transfers are sometimes necessary if land or o欧博娱乐r assets such as renewable energy projects are sold that are subject to an ESA permit. ESA permit transfers have always been allowed, but 欧博娱乐 process to do so is sometimes unclear and cumbersome. In some cases, permits were amended to identify new landowners or new asset owners. This proposed change creates a new permit transfer application that 欧博娱乐 USFWS believes will greatly simplify permit transfers.

7. Clarify information requirements for a permit application

Explanation: The USFWS also proposes to revise and simplify 欧博娱乐ir permit application forms for enhancement of survival permits and incidental take permits. The information requested will more closely align with 欧博娱乐 permit issuance criteria. These information requirements are consistent with current best practices. The revised forms are also intended to be more compatible with 欧博娱乐 USFWS ePermit online permit system that allows electronic submittal.

Overall, 欧博娱乐 proposed changes to 欧博娱乐 ESA are sensible and practical. The proposed changes, if approved, will benefit ESA Section 10 permit applicants and permit holders by streamlining and clarifying 欧博娱乐 permit process for ESA Section 10 applications, amendments, and transfers.