[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Notices]
[Pages 32726-32736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15257]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
National Marine Fisheries Service


Announcement of Final Policy for Candidate Conservation 
Agreements with Assurances

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

ACTION: Announcement of final policy.

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SUMMARY: The Fish and Wildlife Service (FWS) and the National Marine 
Fisheries Service (NMFS) (jointly the Services) announce a joint final 
Policy for Candidate Conservation Agreements (Agreements) with 
Assurances under the Endangered Species Act of 1973, as amended (Act). 
This policy offers assurances as an incentive for non-Federal property 
owners to implement conservation measures for species that are proposed 
for listing under the Act as threatened or endangered, species that are 
candidates for listing, and species that are likely to become 
candidates or proposed in the near future. Published concurrently in 
this Federal Register are the FWS's regulations necessary to implement 
this policy.

DATES: This policy is effective July 19, 1999.

ADDRESSES: Chief, Division of Endangered Species, U.S. Fish and 
Wildlife Service, 1849 C Street, N.W., Washington, D.C. 20240 
(Telephone 703/358-2171, Facsimile 703/358-1735); or Chief, Endangered 
Species Division, National Marine Fisheries Service, Office of 
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910 
(Telephone 301/713-1401, Facsimile 301/713-0376).

FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division 
of Endangered Species, U.S. Fish and Wildlife Service (Telephone 703/
358-2171) or Marta Nammack, Endangered Species Division, National 
Marine Fisheries Service (Telephone 301/713-1401).

SUPPLEMENTARY INFORMATION:

Background

    On June 12, 1997, the Services issued a draft policy (62 FR 32183), 
and the FWS issued proposed regulations to implement the policy (62 FR 
32189). This policy is intended to facilitate the conservation of 
proposed and candidate species, and species likely to become candidates 
in the near future by giving citizens, States, local governments, 
Tribes, businesses, organizations, and other non-Federal property 
owners incentives to implement conservation measures for declining 
species by providing certainty with regard to land, water, or resource 
use restrictions that might be imposed should the species later become 
listed as threatened or endangered under the Act. Under the policy, 
non-Federal property owners, who enter into a Candidate Conservation 
Agreement with assurances that commit them to implement voluntary 
conservation measures for proposed or candidate species, or species 
likely to become candidates or proposed in the near future, will 
receive assurances from the Services that additional conservation 
measures will not be required and additional land, water, or resource 
use restrictions will not be imposed should the species become listed 
in the future.
    Much of the land containing the nation's existing and potential 
fish and wildlife habitat is owned by private citizens, States, local 
governments, Native American Tribal governments, businesses, 
organizations, and other non-Federal entities. The future of many 
declining species is dependent, wholly or in part, on conservation 
efforts on these non-Federal lands. Such conservation efforts are most 
effective and efficient when initiated early. Early conservation 
efforts for proposed and candidate species, and species likely to 
become candidates or proposed in the near future can, in some cases, 
preclude or remove any need to list these species as threatened or 
endangered under the Act.
    By precluding or removing any need to list a species through early 
conservation efforts, property owners can maintain land use and 
development flexibility. In addition, initiating or expanding 
conservation efforts before a species and its habitat are critically 
imperiled increases the likelihood that simpler, more cost-effective 
conservation options will still be available and that conservation will 
ultimately be successful.

[[Page 32727]]

    Early conservation efforts for declining species can be greatly 
expanded through a collaborative stewardship approach. A collaborative 
approach fosters cooperation and facilitates the exchange of ideas 
among private citizens, Federal agencies, States, local governments, 
Tribes, businesses, and organizations by involving all stakeholders in 
the conservation planning process.
    Candidate Conservation Agreements without assurances have been 
effective mechanisms for conserving declining species, particularly 
candidate species, and have, in some instances, precluded or removed 
any need to list some species. Development of Agreements without 
assurances will continue to be a high priority. However, most of these 
Agreements have been between the Services and other Federal agencies 
since non-Federal property owners have had little incentive to enter 
such Agreements. Many non-Federal property owners are willing to manage 
their lands to benefit fish, wildlife, and plants, especially those 
species that are declining. However, some of these property owners are 
reluctant to implement conservation measures for declining species 
because of possible future land, water, or resource use restrictions 
that may result from the Act's section 9 ``take'' prohibitions if their 
conservation efforts cause a species to colonize their lands or 
increase in numbers and the species is subsequently listed as 
threatened or endangered. This policy is designed to provide these 
property owners with the necessary assurances to remove these concerns 
and encourage them to implement conservation measures for these 
species.
    Non-Federal property owners, who through a Candidate Conservation 
Agreement with assurances commit to implement conservation measures for 
a proposed or candidate species or a species likely to become a 
candidate or proposed in the near future, will receive assurances from 
the Services that additional conservation measures will not be required 
and additional land, water, or resource use restrictions will not be 
imposed should the species become listed in the future. These 
assurances will be provided in the property owner's Agreement and in an 
associated enhancement of survival permit issued under section 
10(a)(1)(A) of the Act.
    The Services must determine that the benefits of the conservation 
measures implemented by a property owner under a Candidate Conservation 
Agreement with assurances, 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. ``Other necessary properties'' are 
other properties on which conservation measures would have to be 
implemented in order to preclude or remove any need to list the covered 
species.
    The kinds of conservation measures specified in an Agreement with 
assurances will depend on the types, amounts, and conditions of, and 
need for, the habitats existing on the property and on other biological 
factors. Different kinds of conservation measures may benefit different 
life stages or serve to fulfill different life history requirements of 
the covered species. The amount of benefit provided by an Agreement 
with assurances will depend on many factors, particularly the size of 
the area on which conservation measures are implemented and the degree 
of conservation benefit possible (e.g., through habitat restoration or 
reduction of take). For example, an Agreement with assurances for a 
property with a small area of severely degraded habitat could be 
designed to achieve greater benefits than one for a property with a 
large amount of slightly degraded habitat.
    Because Candidate Conservation Agreements with assurances will be 
designed with the goal of precluding or removing any need to list the 
covered species, these Agreements can have significance in the 
Services' listing decisions. However, the determination of whether 
these Agreements do in fact preclude or remove any need to list the 
covered species will be made on a case-by-case basis in accordance with 
the listing criteria and procedures under section 4 of the Act.
    Collaborative stewardship with State and Tribal fish and wildlife 
agencies is particularly important in the development of Candidate 
Conservation Agreements, given the statutory role of these entities 
under the Act and their traditional conservation responsibilities and 
authorities for resident species. The Services recognize that, under 
some circumstances, a State, Tribal, or local agency or other entity 
may be able to work more promptly, effectively, and efficiently with 
individual property owners toward conservation of declining species. 
Under this policy, the Services can enter into an ``umbrella'' or 
programmatic Agreement with an appropriate State, Tribal, or local 
agency or other entity. Such an Agreement and its associated 
enhancement of survival permit would specify the assurances and take 
allowances that could be distributed by the participating State, 
Tribal, or local agency or other entity to individual property owners 
who choose to participate under the umbrella Agreement. Appropriate 
agencies for such programmatic Agreements include State or Tribal fish 
and wildlife agencies and State, Tribal, or local land management 
agencies. The State, Tribal, or local agency or other entity would be 
the permittee and would issue Certificates of Inclusion (also called 
Participation Certificates) to private property owners who satisfy the 
terms and conditions of the State, Tribal, or local agency's or other 
entity's programmatic Agreement and its associated ``enhancement of 
survival'' permit.
    The Services have a long history of developing Candidate 
Conservation Agreements with Federal agencies, and these efforts will 
continue to be a high priority. However, because subsections 7(a)(1) 
and (a)(2) of the Act obligate Federal agencies to affirmatively 
conserve listed species, an obligation not imposed upon non-Federal 
property owners, the Services will not provide assurances to other 
Federal agencies through these Agreements.
    In 1994, the FWS prepared Draft Candidate Species Guidance, which 
underwent public review and comment (59 FR 65780, December 21, 1994). 
However, it did not address the development of Candidate Conservation 
Agreements with assurances for non-Federal property owners. This final 
policy will be incorporated into the FWS's final guidance on candidate 
species conservation.
    A final rule of the FWS's regulations necessary to implement this 
policy is published concurrently in this issue of the Federal Register. 
That final rule also includes the FWS's regulations necessary to 
implement the Safe Harbor policy (also published concurrently in this 
issue of the Federal Register). The NMFS will publish proposed 
regulations to implement these policies at a later time.

Summary of Comments Received

    The Services received more than 280 letters of comment on the draft 
policy from Federal and State agencies, businesses and corporations, 
conservation groups, religious organizations, trade associations, 
private organizations, and individuals. The Services considered all of 
the information and recommendations received from all interested 
parties and made changes to the draft policy where appropriate. A few 
commenters raised issues related to the FWS's draft implementing 
regulations, and the FWS

[[Page 32728]]

has addressed these issues where appropriate in its final implementing 
regulations also published in today's Federal Register. The following 
is a summary of the comments on the draft policy and the Services' 
responses.
    Issue 1. Many commenters stated that the policy is inconsistent 
with provisions of section 7(a)(1) of the Act that requires all Federal 
agencies to use their authorities to conserve endangered and threatened 
species.
    Response 1. The Services believe that the policy is consistent with 
provisions of section 7(a)(1) of the Act and enables the Services to 
further satisfy the intent of this section of the Act. Entering into an 
Agreement with assurances is completely voluntary for the Services, as 
it is for property owners. The Services will enter into an Agreement 
with assurances only if we have determined that the conservation needs 
for covered species on the participating property owner's property are 
adequately addressed in the Agreement.
    By entering into a Candidate Conservation Agreement with 
assurances, a property owner can obtain certainty that no additional 
conservation measures will be required and no additional land, water, 
and resource use restrictions will be imposed if the species is listed 
in the future. If they cannot obtain such certainty, some property 
owners might choose to eliminate or reduce the species' habitat before 
listing occurs. An Agreement with assurances thus can further the 
conservation of the covered species because it can prevent such losses 
of existing habitat.
    Issue 2. Many commenters believed that the policy is inconsistent 
with provisions of section 7(a)(2) of the Act because it precludes 
reinitiation of section 7 consultation on issuance of an enhancement of 
survival permit. Also, many commenters believed that the Services 
cannot guarantee that funding will be available to pay for additional 
conservation measures needed to address unanticipated changes in 
circumstances.
    Response 2. The Services believe that the policy is consistent with 
section 7(a)(2) of the Act. As applied to implementation of this 
policy, section 7(a)(2) requires the Services to conduct a formal 
intra-Service consultation on the issuance of an enhancement of 
survival permit. The purpose of any consultation is to ensure that any 
action authorized, funded, or carried out by a Federal agency, 
including the issuance of an enhancement of survival permit by the 
Services, is not likely to jeopardize the continued existence of any 
listed or proposed species or result in the destruction or adverse 
modification of designated or proposed critical habitat of such 
species. Since the standard for Candidate Conservation Agreements with 
assurances is the preclusion or removal of the need to list, the 
Services believe that it is highly unlikely that the conservation 
measures prescribed in an Agreement or any incidental take authorized 
by the associated enhancement of survival permit would later be 
discovered to adversely affect the covered species or any listed 
species causing a need to reinitiate intra-Service consultation.
    If unanticipated changes in circumstances occur that might warrant 
modifications to the agreed upon conservation measures, the Services 
would work with the property owner to seek mutually agreed upon 
adjustments to those conservation measures that enhance their 
effectiveness for the covered species. Thus, the Services and property 
owners could agree to substitute the original agreed upon conservation 
measures for new ones that would be no more costly but more effective 
in addressing the changed circumstances. In this fashion, the 
conservation goal for that property owner's property could still be 
maintained.
    The Services will not enter into an Agreement unless (1) the 
threats to and the requirements of the covered species are adequately 
understood so that the Services can determine that the agreed upon 
conservation measures will be beneficial to the covered species; and 
the effects of the agreed upon conservation measures are adequately 
understood so that the Services can determine that they will not 
adversely affect listed species or adversely modify critical habitat or 
(2) any information gaps relating to the requirements of the covered 
species or the effects of the conservation measures on the covered 
species or listed species can be adequately addressed by incorporating 
adaptive management principles into the Agreement. The Services believe 
that, in many Agreements, the conservation measures prescribed for the 
covered species will also benefit other species, including listed ones.
    Moreover, the Services have significant resources and conservation 
authorities that can be used to address the needs of species covered by 
Agreements with assurances when unanticipated changes in circumstances 
cause a need for additional conservation measures. Some funding for 
additional conservation measures may come from existing appropriations 
for either candidate conservation or recovery, depending on whether the 
species is listed. When necessary, the Services will work with other 
Federal, State, and local agencies, Tribal governments, conservation 
groups, and private entities to implement additional conservation 
measures for the species.
    Finally, the Services are prepared as a last resort to revoke a 
permit implementing a Candidate Conservation Agreement with assurances 
where continuation of the permitted activity would be likely to result 
in jeopardy to a species covered by the permit. Prior to taking such a 
step, however, the Services would first have to exercise all possible 
means to remedy such a situation.
    Issue 3. Many commenters believed that the policy precludes 
adaptive management.
    Response 3. The Services encourage the inclusion of the principles 
of adaptive management into Candidate Conservation Agreements with 
assurances and associated enhancement of survival permits when 
necessary, especially when new management techniques are being tested. 
Adaptive management is a process of monitoring the implementation of 
conservation measures, then adjusting future conservation measures 
according to what was learned. Adaptive management can also include 
testing of alternative conservation measures, monitoring the results, 
and then choosing the most effective and efficient measures for long-
term implementation. Inclusion of adaptive management in Agreements 
allows for up-front, mutually agreed upon changes to conservation 
measures in response to changing conditions or new information.
    By incorporating adaptive management into Agreements with 
assurances and associated enhancement of survival permits, the Services 
believe that these Agreements will have sufficient flexibility to 
enable the Services and property owners to address reasonably 
foreseeable changes in circumstances or new information.
    Issue 4. Many commenters stated that Candidate Conservation 
Agreements with assurances will undermine recovery of the covered 
species once it is listed.
    Response 4. The Services believe that this comment reflects 
confusion regarding the standard required by the policy in all 
Agreements with assurances. The policy requires the Services to 
determine that the benefits of the conservation measures implemented by 
a property owner under a Candidate Conservation Agreement with 
assurances, when combined with those benefits that would be achieved if

[[Page 32729]]

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. Since this is essentially a recovery standard, 
each property owner with an Agreement with assurances would contribute 
to precluding or removing any need to list the covered species. 
Therefore, if the covered species became listed, these property owners 
would already be implementing conservation measures that address the 
covered species' conservation needs on their properties.
    Issue 5. Many commenters believed that the draft policy limited 
public participation. Some stated that the draft policy was unclear as 
to when the Services will solicit comments on Candidate Conservation 
Agreements with assurances, and some commenters felt that the public 
should be allowed to participate in the development of all Agreements. 
In addition, many commenters said that Agreements should be subject to 
citizen enforcement.
    Response 5. The Services have changed the policy to clarify when 
the public will have the opportunity to review and comment on 
Agreements with assurances. The Services will make every Agreement with 
assurances available for public review and comment as part of the 
evaluation process for issuance of the enhancement of survival permit 
associated with these Agreements. This comment period will generally be 
30 days; the comment period for large-scale or programmatic Agreements 
that may affect other natural resources will be at least 60 days.
    The development of an Agreement with assurances consists primarily 
of the preparation of a proposal by a non-Federal property owner to 
modify voluntarily their current land management practices so as to 
restore, enhance, or preserve habitat or to implement voluntarily other 
conservation measures for declining species. Because development of 
such a proposal is purely voluntary and involves private land use 
decisions, public participation in the development of an Agreement with 
assurances will only be provided when agreed to by the property owner.
    However, the Services will encourage property owners to allow for 
public participation during the development of an Agreement with 
assurances, particularly if non-Federal public agencies (e.g., State 
fish and wildlife agencies) are involved. The Services also will 
encourage State or local agencies or other entities developing 
``umbrella'' or programmatic Agreements, which would specify the 
assurances and take allowances that could be further delegated by the 
State or local agency or other entity to individual participating non-
Federal property owners, to provide extensive opportunities for public 
involvement during the development process.
    The public will also be given other opportunities to comment on 
Agreements in cases that are related to a listing determination. When 
one or more additional Agreements are completed after the covered 
species is proposed for listing, and the Services determine, based upon 
a preliminary evaluation, that all completed Agreements could 
potentially justify withdrawal of the proposed listing, the comment 
period for the proposed listing will be extended or reopened to allow 
for public comments on the Agreements' adequacy in removing threats to 
the species. The Services believe a preliminary evaluation of the 
likelihood that the completed Agreements remove the need to list is 
necessary in order to justify constricting the available time to reach 
a final determination by extending or reopening the comment period on a 
proposed rule.
    The provisions of the Act providing for citizen suits will be 
neither enhanced nor diminished in any way by the issuance of this 
policy because it will be implemented through the enhancement of 
survival permitting process recognized under the Act. To the extent 
that the current Act allows for citizen lawsuits to challenge the 
issuance of a given section 10(a) permit, nothing in this policy would 
modify or alter that opportunity for possible judicial review.
    Issue 6. Many commenters stated that all Candidate Conservation 
Agreements with assurances should undergo independent scientific 
review.
    Response 6. In determining the need for independent scientific 
review, the Services will consider the complexity of the Agreement, the 
size of the geographic area covered, the number of species covered, the 
presence of data gaps or scientific uncertainties, and other factors. 
Scientific experts will often be asked to assist with development of 
conservation measures and/or to review a draft Agreement. When 
scientific experts are not specifically solicited to provide comments, 
such individuals can submit comments during the general public review 
and comment periods (see Response 5 above). In developing Agreements 
with assurances, the Services may use existing State conservation plans 
or strategies that have undergone scientific review, or the Services 
may use other scientific information published in peer reviewed 
journals.
    Issue 7. Many commenters questioned the authority for and the 
availability of adequate funding for the implementation of this policy.
    Response 7. The Services believe that sections 2, 7, and 10 of the 
Act allow the implementation of this 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.'' The Services believe that 
establishing a program for the development of Candidate Conservation 
Agreements with assurances 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.'' The Services 
believe that, in establishing this policy, they 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. From the perspective of the Services, a well designed 
voluntary Candidate Conservation Agreement is the epitome of 
conservation efforts designed to ``enhance the survival'' of the 
covered species.
    Funding is available to implement this policy through annual 
appropriations. The Services are currently working on Candidate 
Conservation Agreements without assurances, and with finalization of 
this policy the Services will use available resources to develop 
Agreements with assurances as well. The FWS is currently implementing 
over 40 conservation agreements (without assurances) and actions 
benefitting over 200 species. Several of these conservation agreements 
and actions have successfully precluded or removed threats so that 
listing by the Services was avoided.
    The Services will prioritize the development of Agreements with 
assurances because resources to develop Agreements are limited. 
Prioritization will help the Services focus on those Agreements that 
are expected to provide the greatest conservation benefits.
    Issue 8. Many commenters stated that the policy should require that 
all

[[Page 32730]]

Candidate Conservation Agreements with assurances include monitoring 
provisions.
    Response 8. The Services agree that monitoring is necessary to 
ensure that the conservation measures specified in an Agreement with 
assurances 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. For these reasons, monitoring will be a component of most 
Agreements with assurances. For many of these Agreements, monitoring 
can be conducted by the Services or the State and, in many cases, may 
involve only a brief site inspection and appropriate documentation.
    Issue 9. Many commenters believed that Candidate Conservation 
Agreements with assurances will wrongly be used to replace recovery 
plans or warranted listing determinations or to delay the listing 
process.
    Response 9. The Services do not intend for Agreements with 
assurances to replace recovery plans. In fact, in order to facilitate 
the development of Agreements with individual property owners, the 
Services may develop a conservation outline, strategy, or plan to 
determine the measures needed to address the conservation needs of the 
covered species. If the covered species is later listed, the 
conservation strategy or plan may form the basis for part or all of a 
recovery plan.
    The Services also do not intend to use Agreements with assurances 
to justify a determination not to list the covered species when listing 
is in fact warranted. As described in Response 5, when an Agreement 
with assurances is completed after the covered species is proposed for 
listing, and when the Services determine, based upon a preliminary 
evaluation, that the Agreement could potentially justify withdrawal of 
the proposed rule, the comment period for the proposed rule will be 
extended or reopened to allow for public comments on the Agreement's 
adequacy in removing threats to the species.
    However, the Act requires the Services to issue a final 
determination within 1 year of issuing a proposed rule to list. The FWS 
is working diligently to remove the backlog of listing actions that 
accrued following the listing moratorium in 1995 and 1996, and the FWS 
expects to soon be able to again make final listing determinations 
within the 1-year time frame. The Services will not extend this time 
frame in order to allow for the completion and/or consideration of an 
Agreement with assurances. The Services believe a preliminary 
evaluation of an Agreement is necessary in order to justify 
constricting the available time to reach a final determination by 
extending or reopening the comment period on a proposed rule.
    Issue 10. Several commenters stated that the policy should require 
incorporation of avoidance and minimization of take in all Candidate 
Conservation Agreements with assurances.
    Response 10. The Services believe that avoidance and minimization 
of take is an inherent consideration in the development of any 
Agreement with assurances. Property owners whose current land, water, 
or resource use results in take of proposed or candidate species, or 
species likely to become candidates or proposed in the near future, are 
a primary focus of this policy. For some Agreements, avoidance and/or 
minimization of take may be the primary objective. A property owner 
entering into an Agreement with assurances can be assured that, if the 
covered species is listed in the future, no additional land, water, or 
resource use restrictions will be imposed above and beyond the 
conservation measures set forth in the Agreement. After take is 
eliminated or reduced, land, water, or resource uses can often provide 
significant benefits to the covered species. For example, a property 
owner could eliminate or reduce take of a declining grassland bird 
species that nests on his property by agreeing to delay mowing until 
after the nesting season. The species would benefit from successful 
reproduction, and the property owner would benefit from being able to 
maintain his current land use even if the species is later listed.
    If a property owner exceeds the conservation goal established for 
his property as specified in an Agreement with assurances, the property 
owner may choose to reduce the level of conservation benefits he/she 
has provided to the covered species to a lower level, but one that is 
still at or above the conservation goal specified in the Agreement. The 
property owner's enhancement of survival permit would authorize 
incidental take associated with this reduction of conservation benefits 
back to the agreed upon level. Prior to issuing the enhancement of 
survival permit, the Services must determine that the conservation goal 
for the property can be maintained with the level of take authorized by 
the permit. The policy also requires that the Agreement include a 
notification requirement, if appropriate, to provide the Services or 
State agencies with a reasonable opportunity to rescue and translocate 
individuals of a covered species before any authorized take occurs. The 
Services believe that these provisions will ensure that any authorized 
take will not prevent a property owner from achieving the conservation 
goal established for his property and will minimize the amount of 
authorized take that occurs.
    Issue 11. Several commenters believed that the policy should list 
the minimum conditions that must be satisfied before any Candidate 
Conservation Agreements with assurances are pursued.
    Response 11. The Services agree with this comment, and the final 
policy lists the general requirements that all Agreements with 
assurances and associated enhancement of survival permits should 
satisfy. In addition, FWS's implementing regulations, which are 
published in today's Federal Register, also list the requirements that 
must be met before the Services will issue an enhancement of survival 
permit.
    In addition, the FWS's draft Candidate Conservation Handbook 
includes a list of conditions under which Candidate Conservation 
Agreements would most likely be successful in eliminating threats and 
precluding or removing any need to list the covered species. This list 
would also apply to Agreements with assurances. The Services believe 
that such a list is more appropriately included in implementation 
guidance such as the FWS's Candidate Conservation Handbook.
    Issue 12. Several commenters stated that the policy should not 
apply to candidate and proposed species because determinations have 
already been made that these species should be listed, and efforts to 
develop Candidate Conservation Agreements with assurances would only 
delay or forego the necessary protection that could be afforded by 
listing.
    Response 12. The Services do not believe that Agreements with 
assurances will delay or forego any actions necessary to achieve 
conservation of the covered species. In fact, these Agreements will 
help to garner the necessary support from non-Federal property owners 
in achieving conservation through voluntary implementation of 
conservation measures. Additionally, the Services

[[Page 32731]]

believe that, for some candidate and proposed species, it is possible 
to complete the Agreements with assurances necessary to remove the need 
to list before a final listing determination could be made. These 
candidate and proposed species may include (1) species for which 
relatively few, non-complex Agreements are necessary, (2) species for 
which development of Agreements begins prior to the species becoming a 
candidate or proposed species, and (3) candidate species that have a 
low listing priority. Therefore, the Services believe that including 
candidate and proposed species in this policy is appropriate. However, 
for the Services to justify withdrawal of a proposed rule to list, the 
parties to all Agreements with assurances for the covered species must 
have the authority, funding, and commitment to implement the 
Agreements.
    As of April 30, 1999, there were 154 FWS candidate species awaiting 
preparation of proposed rules and 69 FWS proposed species awaiting 
preparation of final rules. Final listing of many of these species, as 
well as many of the species that will be added as candidates or 
proposed species in the future, will require considerable time. The FWS 
believes that initiating early conservation efforts, including the 
development of Agreements with assurances, for some of these species 
will significantly increase the likelihood that conservation will be 
successful.
    Issue 13. Several commenters asked how the conservation goal for 
each property owner's property can be determined without preparing a 
recovery plan.
    Response 13. The Services believe it may be appropriate in some 
cases to prepare a conservation outline, strategy, or plan for a 
species before an Agreement with assurances is developed. In some 
cases, a conservation strategy or plan may already have been developed 
by the Services, another Federal agency, and/or a State agency. These 
strategies or plans may already have identified measures that should be 
implemented to conserve the covered species. In these cases, 
development of Agreements with assurances can be initiated right away.
    Issue 14. Some commenters argued that a property owner could 
destroy habitat for candidate or proposed species, and then request a 
Candidate Conservation Agreement with assurances based on a lower 
starting baseline. Also, some commenters suggested that property owners 
may threaten to destroy habitat unless Agreements are written their 
way.
    Response 14. The Services will not enter into any Agreement with 
assurances that does not meet the minimum standards established by this 
policy and its implementing regulations. Entering into an Agreement 
with assurances is voluntary for the Services and property owners; the 
Services will refuse to enter into an Agreement that does not meet the 
minimum established standards. Also, because the conservation goal for 
a property owner's property is not based solely on the amount of 
currently suitable habitat present, destroying habitat will likely only 
make it more difficult for the property owner to achieve the 
conservation goal for his property. Removing threats and taking actions 
consistent with the goal of precluding or removing any need to list 
would only be made more arduous by an initial destruction of habitat. 
Finally, the Services do not believe that it is credible to suggest 
that a property owner who is otherwise interested enough in declining 
species conservation to consider entering into an Agreement is likely 
to go in and first destroy portions of the species' habitat before 
entering into an Agreement.
    Issue 15. Some commenters stated that the standard for Candidate 
Conservation Agreements with assurances should be to increase the 
likelihood that the species will survive rather than to preclude or 
remove any need to list.
    Response 15. The Services believe that the overall goal for 
Agreements with assurances developed under this policy should be to 
remove threats to the covered species so as to preclude or remove any 
need to list the species. The Services believe that the policy must 
incorporate this standard in order to justify the expenditure of 
resources to develop and evaluate Agreements with assurances, process 
associated enhancement of survival permits, and allow the Services to 
provide assurances to the property owner.
    Issue 16. Some commenters stated that the Services must conduct 
National Environmental Policy Act (NEPA) analyses for all Candidate 
Conservation Agreements with assurances and enhancement of survival 
permits.
    Response 16. The Services believe that implementation of this 
policy must comply with NEPA. The Services have determined that most of 
these Agreements will be categorically excluded under the Department of 
Interior Departmental Manual (DM) NEPA procedures in 516 DM 2, Appendix 
1.10 and under NOAA Administrative Series 216-6, Sections 602b.3 and 
602c.3. The Services expect that most Agreements with assurances and 
associated enhancement of survival permits will result in minor or 
negligible effects on the environment including federally listed 
species and their habitats. Complex, large-scale, or programmatic 
Agreements and their associated permits will require individual NEPA 
analysis.
    Issue 17. Many commenters were confused by the term ``umbrella 
agreements'' in the draft policy.
    Response 17. The Services may enter into an ``umbrella'' or 
programmatic Agreement with an appropriate State or local agency or 
other entity, and through such an Agreement and associated enhancement 
of survival permit, specify the assurances and take allowances that 
could be further delegated by the State or local agency or other entity 
to individual participating non-Federal property owners. In such a 
case, the State or local agency or other entity would be the permittee 
and would issue Certificates of Inclusion (also sometimes called 
Participation Certificates) to non-Federal property owners who satisfy 
the terms and conditions of the State or local agency's or other 
entity's ``umbrella'' or programmatic Agreement and associated permit. 
To avoid confusion in this final policy, the term ``Agreements with 
non-Federal property owners'' is used to refer to Agreements between 
the Services and individual property owners as well as ``umbrella'' or 
programmatic Agreements with State or local agencies or other entities 
through which assurances are further delegated to individual 
participating non-Federal property owners.
    Issue 18. The statement ``These assurances will only be provided to 
the participating property owners or State or local land management 
agencies but not to State regulatory agencies'' confused many 
commenters who recognized that many State or local land management 
agencies also have regulatory responsibilities.
    Response 18. The Services agree that this statement was confusing 
and have clarified it in the final policy. In making the statement, the 
Services overlooked the dual role of many State and local land 
management agencies. The Services intended to emphasize that only non-
Federal property owners, whether they are State or local agencies, 
private individuals, Tribes, or other non-Federal entities, can receive 
assurances. However, as discussed previously, the Services can enter 
into an ``umbrella'' or programmatic Agreement with a State or local 
agency, including a State or local regulatory agency if appropriate, or 
other entity, and through such an Agreement and its

[[Page 32732]]

associated enhancement of survival permit, specify the assurances and 
take allowances that can be delegated by the State or local agency or 
other entity to individual participating non-Federal property owners 
through Certificates of Inclusion, Participation Certificates, or other 
similar vehicles.
    Issue 19. Many commenters questioned the meaning of, or were 
confused by, the phrase ``similarly situated property owners,'' which 
was used in describing the standard to which every Candidate 
Conservation Agreement with assurances will be held. Some commenters 
asked what the standard would be if there are no other similarly 
situated property owners within the range of the species. Some 
commenters asked what non-similarly situated property owners would be 
required to do. In addition, some commenters asked what property owners 
outside the current range of the species would be required to do if 
expansion of the current range of the species is necessary to preclude 
or remove any need to list.
    Response 19. The Services agree that the draft policy did not 
clearly explain the standard that all Agreements with assurances must 
meet and have revised the description of the standard in the final 
policy as follows:
    ``The Services must determine that the benefits of the conservation 
measures implemented by a property owner under a Candidate Conservation 
Agreement with assurances, 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. Other necessary properties are other 
properties on which conservation measures would have to be implemented 
in order to preclude or remove any need to list the covered species. 
The kinds of conservation measures specified in an Agreement with 
assurances will depend on the types, amounts, and conditions of, and 
need for, the habitats existing on the property and on other biological 
factors. Different kinds of conservation measures may benefit different 
life stages or serve to fulfill different life history requirements of 
the covered species. The amount of benefit provided by an Agreement 
with assurances will depend on many factors, particularly the size of 
the area on which conservation measures are implemented and the degree 
of conservation benefit possible (e.g., through habitat restoration or 
reduction of take). For example, an Agreement with assurances for a 
property with a small area of severely degraded habitat could be 
designed to achieve greater benefits than one for a property with a 
large amount of slightly degraded habitat.''
    The Services believe this description of the standard more clearly 
explains the contribution an individual property owner entering into an 
Agreement with assurances would need to make toward precluding or 
removing any need to list the covered species. This description 
addresses the fact that properties differ and that, consequently, 
different conservation measures could be specified for different 
properties. In addition, this description takes into account the fact 
that the Services may need to expand the species' current range in 
order to preclude or remove any need to list.
    Issue 20. Several commenters asked for clarification of the phrase 
``species which will likely become candidates in the near future.''
    Response 20. The objective of this policy is to provide incentives 
to encourage non-Federal property owners to implement early 
conservation for declining species with the goal of precluding or 
removing any need to list. The Services did not want to exclude those 
species that are declining and/or are becoming subject to increasing 
threats and may soon be considered for candidate status. Including 
these species is particularly important considering that the rates of 
decline can sometimes increase abruptly, that the development of a 
Candidate Conservation Agreement with assurances might take longer than 
expected, and that conservation options may be more numerous the 
earlier a species is addressed. Because the circumstances surrounding 
each species are unique, the Services have chosen not to adopt a strict 
regulatory definition of the term ``species that will likely become 
candidates in the near future.'' Instead, the Services will review 
species that are not candidates or proposed species on a case-by-case 
basis when determining whether they may be covered by an Agreement with 
assurances.
    Issue 21. Several commenters were confused by the phrase ``above 
those levels agreed upon and specified in the Agreement,'' which was 
used in describing the assurances provided through Candidate 
Conservation Agreements with assurances and associated enhancement of 
survival permits.
    Response 21. The Services agree that this phrase is confusing and 
have clarified the meaning in the final policy. The draft policy stated 
that ``* * * take authorization would be provided to allow the property 
owner or State or local land management agency to implement management 
activities that may result in take of individuals or modification of 
habitat above those levels agreed upon and described in the 
Agreement.'' The Services did not intend this statement to mean that 
the amount of take authorized by an enhancement of survival permit 
could exceed the amount specified in the associated Agreement or could 
allow for more habitat modification than specified in the Agreement. 
Rather, the statement was an attempt to explain that the enhancement of 
survival permit accompanying an Agreement with assurances would 
authorize a property owner who exceeds the conservation goal specified 
in the Agreement (e.g., through additional habitat improvement or the 
implementation of conservation measures that are more effective or 
beneficial than anticipated and described in the Agreement) to take the 
additional or enhanced number of individuals of the species that is 
consistent with the conservation goal specified in the Agreement. That 
is, a property owner can still avoid the imposition of additional 
restrictions above those agreed to in the Agreement where the property 
owner surpassed the conservation goals established under the Agreement.
    Issue 22. Some commenters were confused by Part 3A of the draft 
policy that stated that a Candidate Conservation Agreement with 
assurances will identify habitat characteristics that support use by 
the covered species on lands or waters under the property owner's 
control or that support populations of the covered species in waters 
that may not be under the property owner's control. These commenters 
questioned the meaning of the phrase ``waters that may not be under the 
property owner's control.''
    Response 22. In using this phrase, the Services intended to address 
the fact that, in some cases, characteristics of a particular property 
owner's property may sustain (or land, water, or resource uses on that 
property may affect) individuals of a species located on other lands or 
waters adjacent to or some distance away from the property owner's 
property. For example, riparian habitat enhancement measures upstream 
may benefit candidate species that are downstream from the 
participating property owner's property. An Agreement with assurances 
can describe this relationship and can include conservation measures to 
improve the characteristics of the property that help sustain (or to 
reduce

[[Page 32733]]

the impacts of the land, water, or resource uses that may affect) the 
individuals of the species found off the property owner's property.
    Issue 23. Several commenters asked if there was any difference 
between the meanings of the terms ``conservation actions,'' 
``management actions,'' ``conservation activities,'' ``management 
activities,'' and ``conservation management activities.''
    Response 23. The Services did not intend for these terms to have 
different meanings and, in the final policy, have used a single term, 
``conservation measures,'' in place of the terms listed above. The term 
``conservation measures'' clearly describes the range of practices 
which could be included in a Candidate Conservation Agreement with 
assurances. Not all conservation measures involve ``management'' that 
is continued into the future; conservation measures may include removal 
of a hazard to the species, construction of a habitat feature (such as 
placement of boulders in a stream to create fish resting habitat), or 
other practices.
    Issue 24. Several commenters were confused by the sentence in the 
``Definitions'' section of the draft policy under ``Covered species'' 
that read ``Those species covered in the Agreement must be treated as 
if they were listed.''
    Response 24. The Services agree that this sentence may have caused 
some confusion and the sentence has been deleted from the final policy. 
The Services have also clarified the definition in the final policy.
    Issue 25. Some commenters questioned why the Services used the term 
``incidental take'' to describe take authorized by an enhancement of 
survival permit under section 10(a)(1)(A) of the Act when ``incidental 
take'' normally applies to take authorized by an Incidental Take permit 
under section 10(a)(1)(B).
    Response 25. The Services have decided to use the term ``incidental 
take'' to refer to the take authorized by an enhancement of survival 
permit associated with a Candidate Conservation Agreement with 
assurances because this ``take'' is incidental to enhancing the 
survival of the species through compliance with the Agreement. 
Similarly, take resulting from research authorized by an enhancement of 
survival permit under section 10(a)(1)(A) is ``incidental take'' in 
that it is typically a consequence of and not the purpose of the 
research. The Services believe using the term ``incidental take'' in 
this policy will be less confusing than coining a new term to 
differentiate take authorized under section 10(a)(1)(A) from that 
authorized under section 10(a)(1)(B).
    Issue 26. Some commenters questioned the use of the term ``net 
benefit'' in the draft policy.
    Response 26. The term ``net benefit'' was erroneously included in 
the draft policy and has been eliminated in the final policy. ``Net 
benefit'' is a concept more appropriately used in ``Safe Harbor'' 
Agreements for listed species conservation.

Revisions to the Proposed Policy

    The following represents a summary of the revisions made to the 
proposed Candidate Conservation Agreements with Assurances policy 
following consideration of public comments.
    (1) The final policy describes the mechanism for property owners to 
terminate their voluntary Candidate Conservation Agreements with 
assurances before the expiration date.
    (2) Specific public review periods for proposed Candidate 
Conservation Agreements with assurances and their associated proposed 
enhancement of survival permits have been established in the final 
policy and implementing regulations.
    (3) The final policy includes general guidelines for the 
development of monitoring provisions of Candidate Conservation 
Agreements with assurances.
    (4) Several definitions and terms have been clarified in the final 
policy.

Final Candidate Conservation Agreements With Assurances Policy

Part 1. What Is the Purpose of the Policy?

    This policy, is intended to facilitate the conservation of proposed 
and candidate species, and species likely to become candidates or 
proposed in the near future, by giving non-Federal citizens, States, 
local governments, Tribes, businesses, organizations, and other non-
Federal property owners incentives to implement conservation measures 
for declining species by providing regulatory certainty with regard to 
land, water, or resource use restrictions that might otherwise apply 
should the species later become listed as threatened or endangered 
under the Act. Under the policy, non-Federal property owners who commit 
in a Candidate Conservation Agreement with assurances to implement 
mutually agreed upon conservation measures for a proposed or candidate 
species, or a species likely to become a candidate or proposed in the 
near future, will receive assurances from the Services 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 Candidate Conservation 
Agreement with assurances, the Services will consider the extent to 
which the Agreement reduces threats to proposed and candidate species 
and species likely to become candidates or proposed in the near future 
so as to preclude or remove any need to list these species as 
threatened or endangered under the Act. While the Services realize that 
the actions of a single property owner usually will not preclude or 
remove any need to list a species, they also realize the collective 
effect of the actions of many property owners may be to preclude or 
remove any need to list. Accordingly, the Services will enter into an 
Agreement with assurances when they determine that the benefits of the 
conservation measures implemented by a property owner under a Candidate 
Conservation Agreement with assurances, 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.
    While some property owners are willing to manage their lands to 
benefit proposed and candidate species, or species likely to become 
candidates or proposed in the near future, most desire some degree of 
regulatory certainty and assurances with regard to possible future 
land, water, or resource use restrictions that may be imposed if the 
species is listed in the future. The Services will provide regulatory 
certainty to a non-Federal property owner who enters into a Candidate 
Conservation Agreement with assurances by authorizing, through issuance 
of an enhancement of survival permit under section 10(a)(1)(A) of the 
Act, a specified level of incidental take of the species covered in the 
Agreement. Incidental take authorization benefits non-Federal property 
owners in two ways. First, incidental take authorization provides 
assurances to property owners that any extra, either intentional or 
unintentional, benefits they achieve for the species beyond those 
agreed upon will not result in additional land, water, or resource use 
restrictions that would otherwise be imposed should the species become 
listed in the future. Second, in the event the species is listed in the 
future, incidental take authorization enables

[[Page 32734]]

property owners to continue current land uses that have traditionally 
caused take, provided take is at or reduced to a level consistent with 
the overall goal of precluding or removing any need to list the 
species.
    Candidate Conservation Agreements with assurances will be developed 
in close coordination and cooperation with the appropriate State fish 
and wildlife agencies and other affected State agencies and Tribes, as 
appropriate. Close coordination with State fish and wildlife agencies 
is particularly important given their primary responsibilities and 
authorities for the management of unlisted resident species. Agreements 
with assurances are to be consistent with applicable State laws and 
regulations governing the management of these species.
    The Services must determine that the benefits of the conservation 
measures implemented by a property owner under a Candidate Conservation 
Agreement with assurances, when combined with those benefits that would 
be achieved if it assumed that conservation measures were also to be 
implemented on other necessary properties, would preclude or remove any 
need to list the covered species. Pursuant to section 7 of the Act, the 
Services must also ensure that the conservation measures included in 
any Agreement with assurances do not jeopardize any listed or proposed 
species and do not destroy or adversely modify any proposed or 
designated critical habitats that may occur in the area.
    Some non-Federal property owners may not have the necessary 
resources or expertise to develop Candidate Conservation Agreements 
with assurances. Therefore, the Services are committed to providing, to 
the maximum extent practicable given available resources, the necessary 
technical assistance to develop Agreements with assurances and prepare 
enhancement of survival permit applications. Furthermore, the Services 
may assist or train property owners to implement conservation measures.
    Development of a biologically sound Agreement and enhancement of 
survival permit application are intricately linked. The Services will 
process the participating non-Federal property owner's enhancement of 
survival permit application following the procedures described in 50 
CFR Parts 17.22(d)(1) and 17.32(d)(1) or 50 CFR Part 222. All terms and 
conditions of the enhancement of survival permit must be consistent 
with the conservation measures included in the associated Agreement 
with assurances.

Part 2. What Definitions Apply to this Policy?

    The following definitions apply for the purposes of this policy.
    ``Candidate Conservation Agreement'' means an Agreement signed by 
either Service, or both Services jointly, and other Federal or State 
agencies, local governments, Tribes, businesses, organizations, or non-
Federal citizens, that identifies specific conservation measures that 
the participants will voluntarily undertake to conserve the covered 
species.
    ``Candidate Conservation Agreements with assurances'' means a 
Candidate Conservation Agreement with a non-Federal property owner that 
meets the standards described in this policy and provides the non-
Federal property owner with the assurances described in this policy.
    ``Candidate Conservation Assurances'' are assurances provided to a 
non-Federal property owner in a Candidate Conservation Agreement with 
assurances that conservation measures and land, water, or resource use 
restrictions in addition to the measures and restrictions described in 
the Agreement will not be imposed should the covered species become 
listed in the future. Candidate Conservation Assurances will be 
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.
    ``Candidate species'' are defined differently by the Services. 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. NMFS defines candidate species as species 
for which NMFS has information indicating that listing may be warranted 
but for which sufficient information to support actual proposed listing 
rules may be lacking. The term ``candidate species'' used in this 
policy refers to those species designated as candidates by either of 
the Services.
    ``Conservation measures'' are actions that a non-Federal property 
owner voluntarily agrees to undertake when entering into a Candidate 
Conservation Agreement with assurances.
    ``Covered species'' means those species that are the subject of a 
Candidate Conservation Agreement with assurances and associated 
enhancement of survival permit. Covered species are limited to species 
that are candidates or proposed for listing and species that are likely 
to become candidates or proposed in the near future.
    ``Enhancement of survival permit'' means a permit issued under 
section 10(a)(1)(A) of the Act that, as related to this policy, 
authorizes the permittee to incidentally take species covered in a 
Candidate Conservation Agreement with assurances.
    ``Non-Federal property owner'' includes, but is not limited to, 
States, local governments, Tribes, businesses, organizations, and 
private individuals, and includes owners of land as well as owners of 
water or other natural resources.
    ``Other necessary properties'' are properties in addition to the 
property that is the subject of a Candidate Conservation Agreement with 
assurances on which conservation measures would have to be implemented 
in order to preclude or remove any need to list the covered species.
    ``Proposed species'' is a species for which the Services have 
published a proposed rule to list as threatened or endangered under 
section 4 of the Act.

Part 3. What Are Candidate Conservation Agreements With Assurances?

    Candidate Conservation Agreements with assurances will identify or 
include:
    A. The population levels (if available or determinable) of the 
covered species existing at the time the parties negotiate the 
Agreement; the existing habitat characteristics that sustain any 
current, permanent, or seasonal use by the covered species on lands or 
waters owned by the participating non-Federal property owner; and/or 
the existing characteristics of the property owner's lands or waters 
included in the Agreement that support populations of covered species 
on lands or waters not on the participating property owner's property;
    B. The conservation measures the participating non-Federal property 
owner is willing to undertake to conserve the species included in the 
Agreement;
    C. The benefits expected to result from the conservation measures 
described in B above (e.g., increase in population numbers; 
enhancement, restoration, or preservation of habitat; removal of 
threat) and the conditions that the participating non-Federal property 
owner agrees to maintain. The Services must determine that the benefits 
of the conservation measures implemented by a property owner under a 
Candidate Conservation Agreement with assurances, 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

[[Page 32735]]

preclude or remove any need to list the covered species;
    D. Assurances provided by the Services that no additional 
conservation measures will be required and no additional land, water, 
or resource use restrictions will be imposed beyond those described in 
B above should the covered species be listed in the future. Assurances 
related to take of the covered species will be authorized by the 
Services through a section 10(a)(1)(A) enhancement of survival permit 
(see Part 5);
    E. A monitoring provision that may include measuring and reporting 
progress in implementation of the conservation measures described in B 
above and changes in habitat conditions and the species' status 
resulting from these measures; and,
    F. A notification requirement to provide the Services 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 Candidate Conservation Agreement with 
assurances, the Services must make a written finding that the benefits 
of the conservation measures implemented by a property owner under a 
Candidate Conservation Agreement with assurances, 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. If the Services and the participating property owner cannot 
agree to an adequate set of conservation measures that satisfy this 
requirement, the Services will not enter into the Agreement. Expected 
benefits of the conservation measures could include, but are not 
limited to: restoration, enhancement, or preservation of habitat; 
maintenance or increase of population numbers; and reduction or 
elimination of incidental take.

Part 5. What Are Assurances to Property Owners?

    In a Candidate Conservation Agreement with assurances, the Services 
will provide that if any species covered by the Agreement is listed, 
and the Agreement has been implemented in good faith by the 
participating non-Federal property owner, the Services 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 individuals of the covered species so long 
as the level of take is consistent with those levels agreed upon and 
identified in the Agreement.
    The Services will issue an enhancement of survival permit at the 
time of entering into the Agreement with assurances. This permit will 
have a delayed effective date tied to the date of any future listing of 
the covered species. The Services believe that an enhancement of 
survival permit is particularly well suited for Candidate Conservation 
Agreements with assurances because the main purpose of such Agreements 
is to enhance the survival of declining species.
    The Services are prepared as a last resort to revoke a permit 
implementing a Candidate Conservation Agreement with assurances where 
continuation of the permitted activity would be likely to result in 
jeopardy to a species covered by the permit. Prior to taking such a 
step, however, the Services would first have to exercise all possible 
means to remedy such a situation.

Part 6. How Do the Services Comply With National Environmental Policy 
Act?

    The National Environmental Policy Act of 1969 (NEPA), as amended, 
and the regulations of the Council on Environmental Quality (CEQ) 
require all Federal agencies to examine the environmental impact of 
their actions, to analyze a full range of alternatives, and to use 
public participation in the planning and implementation of their 
actions. The purpose of the NEPA process is to help Federal agencies 
make better decisions and to ensure that those decisions are based on 
an understanding of environmental consequences. Federal agencies can 
satisfy NEPA requirements 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 Services will review each Candidate Conservation Agreement with 
assurances 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 NOAA's Environmental Review Procedures and NOAA 
Administrative Order Series 216-6). If the Services determine 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 Services exclude an action categorically and when and how to 
prepare an EA or EIS is found in the FWS's Administrative Manual (30 AM 
3) and NOAA Administrative Order Series 216-6.
    The Services expect that most Candidate Conservation Agreements 
with assurances 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. When the impacts 
to the environment are expected to be more than minor, individual NEPA 
analysis will be required. Complex, large-scale, or programmatic 
Agreements and their associated permits will typically be subject to 
individual NEPA analysis.

Part 7. Will There Be Public Review?

    Public participation in the development of a proposed Candidate 
Conservation Agreement with assurances will only be provided when 
agreed to by the participating property owner. However, the Services 
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 enhancement of survival permit associated 
with the Agreement. This comment period will generally be 30 days but 
may be longer for very large or programmatic Agreements. The public 
will also be given other opportunities to review Agreements in certain 
cases. For example, when the Services receive an Agreement covering a 
proposed species, and when the Services determine, based upon a 
preliminary evaluation, that the Agreement could potentially justify 
withdrawal of the proposed rule, the comment period for the proposed 
rule will be extended or reopened to allow for public comments on the 
Agreement's adequacy in removing or reducing threats to the species. 
However, the Act requires the Services to issue a final determination 
within 1 year of issuing a proposed rule to list; the Services will not 
extend this time frame in order to allow for the completion and/or 
consideration of an Agreement with assurances. Therefore, the Services 
may not be able to consider in their final determination Agreements 
that are not received within a reasonable period of time after issuance 
of the proposed rule.

[[Page 32736]]

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 Agreement. The Services will 
provide technical advice, to the maximum extent practicable, to the 
property owner when requested. Additionally, a participating property 
owner, with good cause, can terminate the Agreement prior to its 
expiration date, even if the terms and conditions of the Agreement have 
not been realized. However, the enhancement of survival permit would 
also be terminated at the same time.

Part 9. What Is the Discretion of All Parties?

    Nothing in this policy compels any party to enter a Candidate 
Conservation Agreement with assurances at any time. Entering an 
Agreement is voluntary for non-Federal property owners and the 
Services. Unless specifically noted, an Agreement 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 Candidate Conservation 
Agreement with assurances transfers ownership of the enrolled property, 
the Services 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. 
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 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 under the Agreement nor receive any assurances 
relative to section 9 restrictions resulting from listing of the 
covered species.
    An Agreement must commit the participating property owner to notify 
the Services of any transfer of ownership at the time of the transfer 
of any property subject to the Agreement. This will allow the Services 
the opportunity to contact the new property owner to explain the prior 
Agreement and to determine whether the new property owner would like to 
continue the original Agreement or enter a new Agreement. When a new 
property owner continues an existing Agreement, the Services will honor 
the terms and conditions of the original Agreement.

Part 11. Is Monitoring Required?

    The Services will ensure that necessary monitoring provisions are 
included in Candidate Conservation Agreements with assurances and 
associated enhancement of survival permits. 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 Agreements depending on the 
circumstances. For many Agreements, monitoring can be conducted by the 
Services or a State agency and may involve only a brief site inspection 
and appropriate documentation.
    Large-scale or complex Candidate Conservation Agreements with 
assurances may require more in-depth and comprehensive monitoring. 
Monitoring programs must be agreed upon and included in the Agreement 
prior to public review and comment on the Agreement. The Services are 
committed to providing as much technical assistance as possible in the 
development of acceptable monitoring programs. Additionally, 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 Services, the appropriate State fish and 
wildlife agencies, affected Tribal governments, and property owners is 
important to the successful development and implementation of Candidate 
Conservation Agreements. The Services will closely 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 an Agreement.

    Dated: March 22, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.

    Dated: June 10, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-15257 Filed 6-11-99; 5:08 pm]
BILLING CODE 4310-55-P