Habitat Conservation Plan Assurances (``No Surprises'') Rule

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

50 CFR Part 222

[Docket No. 980212035-8035-01]

RIN 1018-AE24

Habitat Conservation Plan Assurances (``No Surprises'') Rule

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

Service, NOAA, Commerce.

ACTION: Final rule.

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DATES: This rule is effective March 25, 1998.

SUMMARY: This final rule codifies the Habitat Conservation Plan

assurances provided through section 10(a)(1)(B) permits issued under

the Endangered Species Act (ESA) of 1973, as amended. Such assurances

were first provided through the ``No Surprises'' policy issued in 1994

by the Fish and Wildlife Service (FWS) and the National Marine

Fisheries Service (NMFS), (jointly referred to as the ``Services,'')

and included in the joint FWS and NMFS Endangered Species Habitat

Conservation Planning Handbook issued on December 2, 1996 (61 FR

63854). The No Surprises policy announced in 1994 provides regulatory

assurances to the holder of a Habitat Conservation Plan (HCP)

incidental take permit issued under section 10(a) of the ESA that no

additional land use restrictions or financial compensation will be

required of the permit holder with respect to species covered by the

permit, even if unforeseen circumstances arise after the permit is

issued indicating that additional mitigation is needed for a given

species covered by a permit. The Services issued a proposed rule on May

29, 1997 (62 FR 29091) and the comments received on that proposal have

been evaluated and considered in the development of this final rule.

This final rule contains revisions to parts 17 (FWS) and 222 (NMFS) of

Title 50 of the Code of Federal Regulations necessary to implement the

Habitat Conservation Plan assurances.

ADDRESSES: To obtain copies of the final rule or for further

information, contact Chief, Division of Endangered Species, U.S. Fish

and Wildlife Service, Washington, D.C., 20240; or Chief, Endangered

Species Division, National Marine Fisheries Service, Office of

Protected Resources, 1315 East-West Highway, Silver Spring, MD, 20910.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of

Endangered Species, U.S. Fish and Wildlife Service, (Telephone 703/358-

2171, or Facsimile 703/358-1735), or Nancy Chu, Chief, Endangered

Species Division, National Marine Fisheries Service (Telephone (301/

713-1401, or 301/713-0376).

SUPPLEMENTARY INFORMATION: These final regulations and the background

information regarding the final rule apply to both Services. The

proposed rule has been revised based on the comments received. The

final rule is presented in two parts because the Services have separate

regulations for implementing the section 10 permit process. The first

part is for the final changes in the FWS's regulations found at 50 CFR

17.22 and 17.32, and the second part is for the final changes in NMFS's

regulations found at 50 CFR 222.22.

Background

Section 9 of the ESA generally prohibits the ``take'' of species

listed under the ESA as endangered. Pursuant to the broad grant of

regulatory authority over threatened species in section 4(d) of the

ESA, the Services' regulations generally prohibit take of species

listed as threatened. See, e.g., 50 CFR 17.31 and 17.21 (FWS). Section

3(18) of the ESA defines ``take'' to mean ``to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct.'' FWS regulations (50 CFR 17.3) define

``harm'' to include ``significant habitat modification or degradation

where it actually kills or injures wildlife by significantly impairing

essential behavioral patterns, including breeding, feeding or

sheltering.''

Section 10 of the ESA, as originally enacted in 1973, contained

provisions allowing the issuance of permits authorizing the taking of

listed species under very limited circumstances for non-Federal

entities. In the following years, both the Federal government and non-

Federal landowners became concerned that these permitting provisions

were not sufficiently flexible to address situations in which a

property owner's otherwise lawful activities might result in limited

incidental take of a listed species, even if the landowner were willing

to plan activities carefully to be consistent with the conservation of

the species. As a result, Congress included in the ESA Amendments of

1982 provisions under section 10(a) to allow the Services to issue

permits authorizing the incidental take of listed species in the course

of otherwise lawful activities, provided that those activities were

conducted according to an approved conservation plan (habitat

conservation plan or HCP) and the issuance of the HCP permit would not

jeopardize the continued existence of the species. In doing so,

Congress indicated it was acting to ``* * * address the concerns of

private landowners who are faced with having otherwise lawful actions

not requiring Federal permits prevented by section 9 prohibitions

against taking * * * `` H.R. Rep. No. 835, 97th Cong., 2d Sess. 29

(1982) (hereafter ``Conf. Report'').

Congress modeled the 1982 section 10 amendments after the

conservation plan developed by private landowners and local governments

to protect the habitat of two listed butterflies on San Bruno Mountain

in San Mateo County, California while allowing development activities

to proceed. Congress recognized in enacting the section 10 HCP

amendments that:

`` * * * significant development projects often take many years

to complete and permit applicants may need long-term permits. In

this situation, and in order to provide sufficient incentives for

the private sector to

[[Page 8860]]

participate in the development of such long-term conservation plans,

plans which may involve the expenditure of hundreds of thousands if

not millions of dollars, adequate assurances must be made to the

financial and development communities that a section 10(a) permit

can be made available for the life of the project. Thus, the

Secretary should have the discretion to issue section 10(a) permits

that run for periods significantly longer than are commonly provided

[for other types of permits].'' (Conf. Report at 31).

Congress also recognized that long-term HCP permits would present

unique issues that would have to be addressed if the permits were to

function to protect the interests of both the species involved and the

non-Federal community. For instance, Congress realized that ``* * *

circumstances and information may change over time and that the

original [habitat conservation] plan might need to be revised. To

address this situation, the Committee expects that any plan approved

for a long-term permit will contain a procedure by which the parties

will deal with unforeseen circumstances.'' (Conf. Report at 31).

Congress also recognized that non-Federal property owners seeking HCP

permits would need to have economic and regulatory certainty regarding

the overall cost of species mitigation over the life of the permit. As

stated in the Conference Report on the 1982 ESA amendments:

``The Committee intends that the Secretary may utilize this

provision to approve conservation plans which provide long-term

commitments regarding the conservation of listed as well as unlisted

species and long-term assurances to the proponent of the

conservation plan that the terms of the plan will be adhered to and

that further mitigation requirements will only be imposed in

accordance with the terms of the plan. In the event that an unlisted

species addressed in the approved conservation plan is subsequently

listed pursuant to the Act, no further mitigation requirements

should be imposed if the conservation plan addressed the

conservation of the species and its habitat as if the species were

listed pursuant to the Act.'' (Conf. Report at 30 and 50 FR 39681-

39691, Sept. 30. 1985).

Congress thus envisioned and allowed the Federal government to

provide regulatory assurances to non-Federal property owners through

the section 10 incidental take permit process. Congress recognized that

conservation plans could provide early protection for many unlisted

species and, ideally, prevent subsequent declines and, in some cases,

the need to list covered species.

The Services decided that a clearer policy regarding the assurances

provided to landowners entering into an HCP was needed. This need

prompted the development of the No Surprises policy, which was based on

the 1982 Congressional Report language and a decade of working with

private landowners during the development and implementation of HCPs.

The Services believed that non-Federal property owners should be

provided economic and regulatory certainty regarding the overall cost

of species conservation and mitigation, provided that the affected

species were adequately covered by a properly functioning HCP, and the

permittee was properly implementing the HCP and complying with the

terms and conditions of the HCP permit in good faith. A driving concern

during the development of the policy was the absence of adequate

incentives for non-Federal landowners to factor endangered species

conservation into their day-to-day land management activities.

The Services issued the ESA No Surprises policy in August of 1994.

This policy was then included in the joint Endangered Species Habitat

Conservation Planning Handbook, which was published in draft form for

public review and comment on December 21, 1994 (59 FR 65782), and,

after consideration of the comments, was issued as final in December

1996 (61 FR 63854). In addition to that opportunity for public comment

on the No Surprises policy in general, the application of the policy

and its assurances have been and continue to be subject to an

opportunity for public comment on each proposed HCP permit under

section 10(c) of the ESA on a case-by-case basis. The Services were

subsequently sued in Spirit of the Sage Council v. Babbitt, No.

1:96CV02503 (SS) (D. D.C.), which challenged the procedures under which

the No Surprises policy was adopted and under which subsequent HCP

permits were issued. In settling this lawsuit, the Services agreed to

submit the No Surprises Policy to further public comment and to

consider public comment in deciding whether to adopt the No Surprises

policy as a final regulation. The Services agreed to this approach

because they recognized the benefits of permanently codifying the No

Surprises policy as a rule in 50 CFR, as well as the value of

soliciting additional comments on the policy itself.

Summary of the Proposed Rule

The proposed rule stated that the Services, when negotiating

unforeseen circumstances provisions for HCPs, would not require the

commitment of additional land, property interests, or financial

compensation beyond the level of mitigation that was otherwise

adequately provided for a species under the terms of a properly

functioning conservation plan. Moreover, the Services would not seek

any other form of additional mitigation from a permittee except under

unforeseen circumstances. However, if additional mitigation measures

were subsequently deemed necessary to provide for the conservation of a

species that was otherwise adequately covered under the terms of a

properly functioning conservation plan, the obligation for such

measures would not rest with the permittee.

Under the proposed rule, if unforeseen circumstances warrant

additional mitigation from a permittee who is in compliance with the

conservation plan's obligations, such mitigation would, to the maximum

extent possible, be consistent with the original terms of the

conservation plan. Further, any such changes will be limited to

modifications within conserved habitat areas, if any, or to the

conservation plan's operating conservation program for the affected

species. Additional mitigation requirements would not involve the

payment of additional compensation or apply to parcels of land or the

natural resources available for development under the original terms of

the conservation plan without the consent of the permittee.

Criteria were also developed by the Services that must be used for

determining whether and when unforeseen circumstances arise.

Under the proposed rule, the Services also would not seek any form

of additional mitigation for a species from a permittee where the terms

of a properly functioning conservation plan were designed to provide an

overall net benefit for that species and contained measurable criteria

for the biological success of the conservation plans which have been or

are being met. Nothing in the proposed rule would limit or constrain

the Services, or any other governmental agency, from taking additional

actions at its own expense to protect or conserve a species included in

a conservation plan.

The Services also proposed a permit-shield provision in the

proposed rule that stated that compliance with the terms of an

incidental take permit constitutes compliance with the requirements of

sections 9 and 10 of the ESA with respect to the species covered by the

permit regardless of changes in circumstances, policy, and regulation,

unless a change in statute or court order specifically requires that

assurances given in the original permit be modified or withdrawn.

[[Page 8861]]

The Services also clarified in the proposed rule that the

regulatory and economic assurances provided to HCP permittees are

limited to section 10(a)(1)(B) permits. In addition, the assurances are

not provided to Federal agencies.

Summary of Comments Received

The Services received more than 800 comments on the proposed rule

from a large variety of entities, including Federal, State, County, and

Tribal agencies, industry, conservation groups, religious groups,

coalitions, and private individuals. The Services considered all of the

information and recommendations received from all interested parties on

the proposed regulation during the public comment period and

appreciated the comments received on the proposed rule. In addition to

comments that specifically addressed the proposed No Surprises policy

in the proposed rule, the Services received numerous additional

comments on the HCP process itself, comments which were beyond the

narrow scope of this particular rulemaking on the No Surprises policy.

The Services will utilize these more generic comments on HCPs, as

appropriate, as we continue to improve the implementation of our HCP

programs. However, at this time, the Services will only address

comments received that are specific to the proposed No Surprises rule.

The Services have made changes in the proposed rule where

appropriate. In addition, the Services intend to revise the HCP

Handbook, both to reflect the final No Surprises rule and to further

enhance the effectiveness of the HCP process in general through

expanded use of adaptive management, monitoring provisions, and the

establishment of overall biological goals for HCPs.

The following is a summary of the comments on the proposed

regulations, and the Services' response.

Issue 1: Many commenters believed that to provide regulatory No

Surprises assurances, the Secretary was directed to ``* * * consider

the extent to which the conservation plan is likely to enhance the

habitat of the listed species or increase the long-term survivability

of the species or its ecosystem * * *'' (Conf. Report at 31.) and that

the Services have no legislative authority to provide regulatory

assurances for HCPs that do not meet this standard.

Response 1: A proposed HCP must satisfy the specific issuance

criteria enumerated in section 10(a)(2)(B) of the ESA. In deciding

whether these criteria have been satisfied and whether the permit

should be issued for a given species, the Services consider, among

other things, the extent to which the habitat of the affected species

or its long-term survivability may be improved or enhanced. While it

may be appropriate to consider an ``enhancement factor'' for an HCP, it

is not a mandatory section 10(a)(2)(B) issuance criterion for all

species.

Each HCP is analyzed on a case-by-case basis, using the best

scientific information available. Habitat conditions are part of the

data the Services evaluate to determine whether a proposed HCP meets

the section 10 issuance criteria. The legislative history of the 1982

amendments to section 10 of the ESA indicates that Congress viewed

habitat improvement and species conservation as appropriate

considerations in determining whether to issue long-term incidental

take permits. Certain types of HCPs, such as forest HCPs that include

aquatic species, often allow for significant timber harvest and

consequent species impacts during the initial years, while it may take

decades before the riparian measures under the plan produce stream

conditions that provide essential habitat functions for the listed

species. The Services agree that, in appropriate situations, the

legislative history supports including measures to provide for improved

habitat over the life of the plan in section 10 permits. Severely

depleted species and species for which the HCP covers all or a

significant portion of the range are examples of circumstances in which

essential habitat functions must be addressed to ensure that the

conservation measures in the HCP provide a high probability that the

habitat functions essential to the species' long-term survival will be

achieved and maintained during the term of the permit.

Issue 2: Many commenters felt that this proposed regulation was

driven solely by the needs of private landowners, and is not in the

best interests of the species or other public concerns. Many commenters

noted that the proposed regulation did not have commensurate

certainties for protection of biological resources.

Response 2: The section 10(a) HCP provisions of the ESA were

designed to help alleviate section 9 ``take'' liability for species on

non-Federal lands. The ESA, as originally enacted, allowed the taking

of listed species only under very limited circumstances, and did not,

for example, allow the incidental take of listed species in the course

of otherwise lawful activities. The 1982 ESA amendments to section

10(a) authorize the Services to issue HCP permits allowing the

incidental take of listed species in the course of otherwise lawful

activities, provided the activities are conducted according to an

approved habitat conservation plan that minimize and mitigate take and

avoids jeopardy to the continued existence of the affected species.

The Services disagree that the No Surprises policy has a narrow

focus that excludes the consideration of listed species conservation.

To the contrary, a driving concern in the development of the policy was

the absence of adequate incentives for non-Federal landowners to factor

endangered species conservation into their day-to-day land management

activities. The Services knew that much of the habitat of listed

species is in non-Federal lands and believed that HCPs should play a

major role in protecting this habitat. Yet, while thousands of acres of

species habitat were disappearing each year, only a handful of HCPs had

been sought and approved since 1982. The No Surprises policy was

designed to rechannel this uncontrolled ongoing habitat loss through

the regulatory structure of section 10(a)(1)(B) by offering regulatory

certainty to non-Federal landowners in exchange for a long-term

commitment to species conservation. Given the significant increase in

landowner interest in HCPs since the development of the No Surprises

policy, the Services believe that the policy has accomplished one of

its primary objectives--to act as a catalyst for integrating endangered

species conservation into day-to-day management operations on non-

Federal lands. The Services also believe that the HCP process, which is

a mechanism that reconciles economic development and the conservation

of listed species, is good for rare and declining species, and

encourages the development of more of these plans. If species are to

survive and recover, such plans are necessary because more than half of

the species listed have 80 percent of their habitat on non-Federal

lands.

Issue 3: Many commenters stressed that the proposed regulation

would unlawfully allow the Services to avoid their mandatory duties

under section 7 of the ESA. They argued that the proposed regulation

precludes the Services from meeting the regulatory and statutory

requirements under 50 CFR 402.16 and section 7(d) because it makes

reinitiation of consultation useless and precludes any meaningful

reexamination of mitigation measures if the measures in the HCP are

later found to be inadequate to avoid jeopardy as required under

section 7(a)(2). If jeopardy did arise, commenters do not

[[Page 8862]]

feel that the Services would be able to implement the necessary

mitigation to avoid the jeopardy because of lack of funding. Other

concerns were also raised by commenters regarding the respective

balance of responsibilities among the participants to an HCP containing

a No Surprises assurance. Also, some commenters suggested the Services

would not be fulfilling their mandatory conservation obligations under

section 7(a)(1).

Response 3: The Services are committed to meeting their

responsibilities under section 7(a)(2) of the ESA. As required by law,

the Services conduct a formal intra-Service section 7 consultation

regarding the issuance of each permit issued under section 10(a)(1)(B).

The purpose of any consultation is to insure that any action

authorized, funded, or carried out by the Federal government, including

the issuance of an HCP permit, is not likely to jeopardize the

continued existence of any listed species or result in the destruction

or adverse modification of critical habitat of such species. In

addition, the Services encourage all applicants to maximize benefits to

species covered by their HCPs because of the Services' responsibilities

under 7(a)(1). Moreover, as discussed in Response #1, in appropriate

situations, such as when an HCP covers most or the entire range of a

species or covers severely depleted species, the Services will seek

measures necessary for the long-term survival of the species and its

habitat.

The Services do not believe they are disregarding the requirements

of section 7(d) in providing assurances to landowners through the

section 10 process. During the formal section 7(a)(2) consultation

process, and prior to the issuance of a final biological opinion, the

Services (like any other Federal action agency) must not make any

irreversible or irretrievable commitments of resources (in the case of

proposing to issue an HCP permit, the Services cannot authorize

incidental take) that would preclude the development of reasonable and

prudent alternatives in the event that the action, as proposed,

violates section 7(a)(2) of the ESA. In the context of HCP permit

procedures, the only manner in which the Services could violate section

7(d) is if they authorized incidental take prior to making a final

decision on a permit application, which is never the case.

In addition, the No Surprises assurances do not make reinitiation

of consultation useless or preclude any meaningful reexamination of the

HCP's operating conservation program. The Services will not require the

landowner to provide additional mitigation measures in the form of

additional land, water, or money. However, additional mitigation

measures can be provided by another entity. Similarly, the No Surprises

rule does not preclude the Services from shifting emphasis within an

HCP's operating conservation program from one strategy to another in an

effort to enhance an HCP's overall effectiveness, provided that such a

shift does not increase the HCP permittee's costs. For example, if an

HCP's operating conservation program originally included a mixture of

predator depredation control and captive breeding, but subsequent

research or information demonstrated that one of these was considerably

more effective than the other, the Services would be able to request an

adjustment in the proportionate use of these tools, provided that such

an adjustment did not increase the overall costs to the HCP permittee.

Moreover, if the Services reinitiate consultation on the permitting

action, and if additional measures are needed, the Services will work

together with other Federal, State, and local agencies, Tribal

governments, conservation groups, and private entities to ensure

additional measures are implemented to conserve the species.

Regarding the concerns on the respective balance of

responsibilities among the participants to an HCP containing a No

Surprises assurance, the Services believe the No Surprises rule places

the preponderance of the responsibility for protection beyond the terms

of a specific HCP upon the Services. The only impediments to the

Services' assumption of this additional responsibility will arise from

limits on authority or funding to provide this additional protection.

The Services have significant resources and authorities that can be

utilized to provide additional protection for threatened or endangered

species that are the subject of a given HCP including land acquisition

or exchange, habitat restoration or enhancement, translocation, and

other management techniques. For example, lands managed by the

Department of the Interior could be used to ensure listed species

protection. Moreover, subsequent section 7 consultations and approval

of subsequent section 10 permits will have to take into account the HCP

and the status of the species at that time. The section 9 prohibition

against unauthorized take by other landowners provides additional

protection.

In addition, section 5 of the ESA authorizes the Services to

acquire lands to conserve endangered and threatened fish, wildlife, and

plants, and section 6 of the ESA authorizes the Services to cooperate

with the States in conserving listed species. While many of these

programs and authorities are subject to the availability of

appropriations, others, such as the authority under the Federal Land

Policy and Management Act to exchange land for conservation purposes,

do not require appropriations. These authorities provide additional

flexibility through which the Services could meet their section 7

responsibilities. While by no means exhaustive, the above discussion

demonstrates the depth of authorities and resources available to the

Services to meet their No Surprises commitments.

Utilizing these authorities and resources, the Services should be

able to provide additional species protection that may be required in

the unexpected event that an HCP falls short of providing sufficient

protection.

Issue 4: Many commenters stated that the proposed regulation

violates section 4(b)(8) of the ESA, which requires ``* * * the

publication in the Federal Register of any proposed or final regulation

which is necessary or appropriate to carry out the purposes of this ESA

shall include a summary by the Secretary of the data on which such

regulation is based and shall show the relationship of such data to

such regulation * * *''.

Response 4: The Services believe section 4(b)(8) is intended to

apply only to listing and critical habitat decisions under section 4.

However, even if section 4(b)(8) did apply to this rule, the Services

have complied with its requirements. The proposed rule contained a

thorough discussion of the basis for the proposed rule (62 FR 29091,

May 29, 1997). In addition, the Services had previously explained the

background of the No Surprises Policy in the draft HCP Handbook, which

was published for public comment in the Federal Register (59 FR 65782,

December 21, 1994).

Issue 5: Many commenters believe that the Secretary of the Interior

does not have the authority to issue assurances for species covered by

the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle

Protection Act (BGEPA).

Response 5: The FWS believes that the ESA is more restrictive and

protective of species than the MBTA and the BGEPA, and that species

covered under an HCP that are also covered by the MBTA and the BGEPA

will adequately be protected as long as the HCP is properly

implemented. The FWS has concluded that under certain

[[Page 8863]]

conditions, a section 10 permit allowing incidental take of listed

migratory birds is sufficient to relieve the permittee from liability

under the MBTA and BGEPA for taking those species. For the MBTA, this

is accomplished by having the HCP permit double as a Special Purpose

Permit authorized under 50 CFR 21.27. For the BGEPA, the FWS would

exercise its prosecutorial discretion not to prosecute an incidental

take permittee under the BGEPA if such take is in compliance with a

section 10 permit under the ESA.

However, there are conditions that must be satisfied before either

of these protections apply, which are explained on pages 3-40 to 3-41

in the joint Endangered Species Habitat Conservation Planning Handbook

(61 FR 63854, December 2, 1996). The FWS believes this approach is

warranted because the permittee already would have agreed to an

operating conservation program designed to conserve the species and

minimize and mitigate the impacts of take of the listed species of

migratory birds to the maximum extent practicable. Through the

permitting provisions of the MBTA and the FWS's discretion in the

enforcement of the BGEPA and the ESA, the FWS has the authority to

provide a permittee with assurance that they will not be prosecuted

under the MBTA or BGEPA for take expressly allowed under the ESA.

Issue 6: Many commenters stated that HCPs with No Surprises

assurances are in conflict with the issuance criteria in the ESA

because, in the event of unforeseen circumstances, the project impacts

may not be fully mitigated and the plan may reduce the survival and

recovery of a covered species.

Response 6: The assurances provided through this regulation are

consistent with the issuance criteria of the ESA. Before issuing a

permit, the Services ensure that the applicant minimizes and mitigates

the project impacts, to the maximum extent practicable, and that the

permitted activities avoid jeopardy to the continued existence of the

affected species.

In addition, in cases where significant data gaps exist, adaptive

management provisions are included in the HCP. The primary reason for

using adaptive management in HCPs is to allow for up-front, mutually

agreed upon changes in the operating conservation program that may be

necessary in light of subsequently developed biological information. In

the event of unforeseen circumstances, these strategies may be

redirected as long as the redirection is consistent with the scope of

the mutually agreed-upon adaptive management provisions of the HCP.

Issue 7: Many commenters stated that the applicant is legally

required to address all unforeseen circumstances in the HCP pursuant to

section 10. They noted that fire, disease, drought, flood, global

climate change, and non-point source pollution may be unforeseen, but

are not uncommon. Also the proposed regulation does not direct the

applicant to provide for all unforeseen circumstances that might occur

during the length of the permit because it is the Services'

responsibility to determine that there was an unforeseen circumstance

that was not addressed and is not the fault of the permittee

implementing the HCP. In addition, commenters noted that the nature of

many of the HCPs that the Services are approving increases the

likelihood for unforeseen events to happen (i.e., the permits are

issued for many years and cover large areas and many species).

Response 7: The Services disagree that HCPs must address all

hypothetical future events, no matter how remote the probability that

they may occur. Rather, the Services believe that only reasonably

foreseeable changes in circumstances need to be addressed in an HCP.

Moreover, these circumstances are likely to vary from HCP to HCP given

the ever changing mix of species and affected habitats covered by a

given plan. Nevertheless, the Services agree that the proposed rule's

treatment of unforeseen circumstances could be strengthened, and a

definition of unforeseen circumstances has been codified in this rule.

In particular, the Services would like to clarify that unforeseen

circumstances will only include events that could not reasonably have

been anticipated. All reasonably foreseeable circumstances, including

natural catastrophes that normally occur in the area, should be

addressed in the HCP. The final rule specifies how unforeseen

circumstances will be addressed if they occur during the life of the

permit.

Issue 8: Commenters believe that the proposed regulation would not

allow for social changes that could occur over the lifetime of the

permit. For example, they claim that the development and implementation

of the Emergency Salvage Timber rider has affected the success of the

conservation measures of several HCPs.

Response 8: There may be situations that do arise related to social

changes that could occur during the lifetime of the permit. In these

situations, the Services will use all of their legal authorities to

adequately address the changes. The Timber Salvage rider to the

Appropriations bill is actually a good example of how the

Administration responded to a change in social policy. On July 27,

1995, the President signed the Rescission Act (Public Law 104-19) that

provided funds for disaster relief and other programs. This bill

contained provisions for an emergency salvage timber sale, and directed

the preparation, offer, and award of timber salvage sales nationwide.

Although the bill passed, the President did not support the provision

that waived compliance with environmental laws during timber salvage

and directed the Secretaries of Agriculture, the Interior and Commerce,

and the heads of other agencies, to move forward to implement the

timber-related provisions of the bill in an expeditious and

environmentally-sound manner. The Services worked with other Federal

agencies to develop a process that, as a matter of Administration

policy, addressed compliance with all environmental laws while also

meeting the requirements of Pub. L. 104-19. An interagency team of

Federal agencies then drafted a process that addressed compliance with

the ESA through a streamlined section 7 consultation procedure to

ensure that these sales did not jeopardize listed species. In this

case, the Services and other Federal agencies cooperatively used their

administrative discretion and legal authorities to ameliorate adverse

impacts upon listed species conservation.

Issue 9: Several commenters believe that the proposed No Surprises

rule negates adaptive management provisions incorporated into HCPs, and

may not allow future jeopardy situations to be addressed, because

adaptive management must allow for adaptions to changes as they occur

rather than trying to plan for everything up front. In addition, many

commenters believe that in order to get No Surprises assurances, an HCP

must have an adaptive management program that addresses all foreseeable

biological and environmental changes and that is designed so that new

applicable scientific information and information developed through a

monitoring program is incorporated into the plan.

Response 9: The Services do not believe that the proposed rule

negates adaptive management provisions incorporated into HCPs for the

species with biological data gaps. The No Surprises assurances only

apply to an approved HCP that has otherwise satisfied the issuance

criteria under section 10(a)(2)(B) of the ESA. When considering permits

where there are significant biological data gaps, the

[[Page 8864]]

Services have two choices: either deny an HCP permit application due to

the inadequacy of the overall proposed plan, or build in adaptive

management and monitoring provisions where warranted because of

biological data gaps and issue the permit. If there is significant

uncertainty associated with the operating conservation program,

adaptive management becomes an integral component of the HCP.

Incorporating adaptive management provisions into the HCP becomes

important to the planning process and the long-term interest of

affected species when HCPs cover species with significant biological

data gaps. Through adaptive management, the biological objectives of an

operating conservation program are defined using techniques such as

models of the ecological system that includes its components,

interactions, and natural fluctuations. If existing data makes it

difficult to predict exactly what conservation and mitigation measures

are needed to achieve a biological objective, then an adaptive

management approach should be used in the HCP. Under adaptive

management, the HCP's operating conservation program can be monitored

and analyzed to determine if it is producing the desired results (e.g.,

properly functioning riparian habitats). If the desired results are not

being achieved, then adjustments in the program can be considered

through an adaptive management clause of the HCP. Thus, adaptive

management can be an integral part of the operating conservation

program for an HCP and can be implemented to adjust strategies

accordingly. The Services support continuing to strengthen the

effectiveness of adaptive management provisions in HCPs and intend to

do so in further revisions to the HCP Handbook.

Issue 10: Numerous commenters stated that the proposed regulation

should identify secured sources of funding that do not rely on

appropriations for the implementation of conservation measures that may

be needed to address unforeseen circumstances.

Response 10: Funding mechanisms of this type would have to be

established through Congressional action. Absent Congressional action

on this matter, the Services must operate with the fiscal resources

otherwise made available to them through the appropriations process.

Moreover, in approving an HCP in the first instance, the Services must

conclude that the permittee has provided for adequate funding to

implement the terms of the HCP.

Issue 11: Many commenters stated that the Federal government is not

capable of shouldering the financial burden of funding the

implementation of conservation measures that may be needed to address

unforeseen circumstances. The hardship of paying for any changes needed

in the HCP on the government may have severe and far reaching effects

on funding for other Federal activities. In addition, some commenters

noted that the proposed regulation unlawfully shifts the burden of

funding to the Services when section 10 clearly states that the

applicant will provide the funding. Numerous commenters stated that the

government does not have guaranteed funding for covering unforeseen

circumstances and cannot make such guarantees in violation of the Anti-

Deficiency Act.

Response 11: The ESA requires the Service to find that an

incidental take permittee has provided adequate funding to implement an

HCP in the first instance. In addition, the Services must ensure that

HCPs are designed to adequately mitigate the incidental take authorized

by the permit, include measures to deal with unforeseen circumstances

that may arise, and comply with such other measures that the Secretary

may require as being necessary or appropriate for purposes of the plan.

Once the Services have concluded that a permittee has initially

satisfied the issuance criteria in section 10(a), there is nothing in

the ESA that precludes the Services from assuming additional

responsibility for species covered under the terms of an HCP,

especially when such responsibilities are limited to highly unlikely

unforeseen circumstances. In fact, the Services have responsibility for

listed species conservation regardless of whether an HCP is involved or

not, and carrying out that responsibility (for example, through the

initiation of litigation to enforce section 9 of the ESA) is also

dependent upon the availability of appropriated funds. Therefore, at a

conceptual level, the lack of guaranteed funding to handle a breakdown

of an HCP due to unforeseen circumstances is no different from a lack

of guaranteed funding to enforce the ESA generally.

The Anti-Deficiency Act applies to the Services' activities under

the ESA as it does to their activities under all other environmental

laws. In the face of an unexpected species decline, where additional

conservation efforts are warranted, the Services have significant

resources at their disposal to address the comparative needs of the

species. As noted earlier in Response #3, the Services can also work

with Congress, other Federal, State, and local agencies, tribes,

environmental groups, and private entities to help ensure the continued

conservation of the species in the wild. The Services have a variety of

tools available to ensure that the needs of the species affected by

unforeseen circumstances are adequately addressed, including land

acquisition or exchange, habitat restoration or enhancement,

translocation, and other management techniques. Thus, the Services

believe they have a wide array of options and resources available to

respond to any unforseen circumstances.

Issue 12: Many commenters noted that many HCPs do not have adequate

funding, and the Services must not issue an incidental take permit

unless an applicant has secured adequate funding to address all

foreseeable changes that might be needed in the conservation measures

during the lifetime of the permit. County or State Bonds that are not

guaranteed should not be considered ``adequate funding.''

Response 12: Section 10(a)(2)(B)(iii) requires incidental take

permit applicants to ``ensure that adequate funding for the plan will

be provided.'' This issuance criterion requires that the applicant

detail the funding that will be available to implement the proposed

operating conservation program. Therefore, all conservation plans

specify funding requirements necessary to implement the plan. The

Services issue a permit only when they have concluded that the

operating conservation program will be adequately funded. No Surprises

only applies to an HCP that is being properly implemented, and if a

major component of an HCP, like its funding strategy, is never

initiated or implemented, then No Surprises no longer applies and the

assurances lapse.

The FWS has incorporated provisions into HCPs that allow for a

reevaluation of species coverage in case a County or State Bond that is

supposed to meet the adequate funding issuance criterion ultimately is

not passed. Under these provisions, the list of species authorized for

incidental take may be diminished if funding is not in place within a

specified time frame, and any incidental take that would occur before

the bond measure is acted upon would have to be adequately mitigated

up-front. This reevaluation mechanism was used in the Multiple Species

Conservation Program for southwestern San Diego County, California.

This type of reevaluation process will be incorporated into other HCPs

that rely on proposed bonds to provide required funding.

[[Page 8865]]

Issue 13: Many commenters stated that funding and accountability

mechanisms are more complicated for permits that involve third party

beneficiaries (e.g., certificates of inclusion), and that these types

of permits should not include assurances.

Response 13: The Services believe that the assurances provided by

the final rule should be available to individuals who participate in

HCPs through a larger regional planning process. These large-scale,

regional HCPs can significantly reduce the burden of the ESA on small

landowners by providing efficient mechanisms for compliance,

distributing the economic and logistical impacts of endangered species

conservation among the community, and bringing a broad range of

landowner activities under the HCPs' legal protection. In addition,

these large-scale HCPs allow for ecosystem planning, which can provide

benefits to more species than small-scale HCPs. Large-scale HCPs also

provide the Services with a better opportunity for analyzing the

cumulative effects of the projects, which is more efficient than the

piecemeal approach that could result if each landowner developed his/

her own HCP. The Services do believe, however, that the party that

holds the ``overarching'' permit, and issues subpermits (e.g.,

Certificates of Inclusion or Participation Certificates) must have the

legal authority to enforce the terms and conditions of the permit and

the underlying funding mechanisms for the HCP.

Issue 14: Many commenters requested the Services to remove the

permit-shield provision from the proposed regulation because it

improperly restricts the authority of the Secretary and citizens to

enforce the requirements of the ESA. These commenters assert that the

Services do not have the authority to prevent citizens from suing those

who are in violation of the ESA. One commenter stated that the permit-

shield provision lacks important limitations found in other permit-

shield provisions, such as the Clean Water Act and Resource

Conservation and Recovery Act. Commenters also stated that the proposed

permit-shield provision conflicts with the citizen suit provision in

section 11(g) of the ESA. Other commenters supported the proposed

permit-shield provision and urged the Service to incorporate it into

the final rule. These commenters believe failure to include a permit-

shield provision would undercut the No Surprises assurances by exposing

permit holders to potential enforcement actions even if they are

complying fully with the terms and conditions of valid permits.

Response 14: After further review of the permit-shield concept,

including a review of legal authorities, the Services have decided not

to include a legally binding permit-shield provision in the final rule.

The purpose of the permit-shield provision was to provide certainty to

permittees regarding their legal obligations. The current statutory and

regulatory framework appears to already provide permittees with that

certainty. Although commenters stated that a permit holder might still

be vulnerable to government-initiated enforcement actions

notwithstanding the No Surprises assurances, the Services cannot

identify situations in which a permittee would be in violation of

Sections 9 or 11 of the ESA, if in fact they were acting within the

permit's authorization and were complying with the terms and conditions

of the permit.

In addition, as part of the review of legal authorities, the

Services reviewed the court decision in Shell Oil Company v.

Environmental Protection Agency, 950 F.2d 741, 761-765 (D.C. Cir.

1991), which addressed the legality of the Environmental Protection

Agency's permit-shield rule for permits issued under the Resource

Conservation and Recovery Act (RCRA). Although that decision upheld the

RCRA permit-shield rule promulgated by the EPA, 40 CFR 270.4(a), the

Services are concerned that the incidental take permit program is

sufficiently different from the RCRA permit program that the Shell Oil

decision may not support a permit-shield rule for incidental take

permits. For instance, the court noted that the maximum term of RCRA

permits is 10 years, which is considerably shorter than the terms of

most incidental take permits. In addition, the EPA retains explicit

authority to modify or terminate RCRA permits in response to

information arising after a permit is issued that would have justified

different permit terms had it existed when the permit was issued. In

contrast, the No Surprises rule commits the Service to issue permits

that do not require additional land, water, or financial compensation

or additional restrictions on the use of land, water, or other natural

resources if unforeseen circumstances arise.

Although the Services have decided not to include a legally binding

permit-shield provision in the final rule, they nonetheless strongly

support a policy that permittees should feel free of potential

prosecution if they are acting under the authorizations of their permit

and are complying with the terms and conditions of the permit. The

Services therefore will continue their policy of not enforcing the

prohibitions of Section 9 of the ESA against any incidental take

permittee who complies fully with the terms and conditions of the

permit.

Many commenters requested that the Services remove the permit-

shield provision from the proposed regulation because it improperly

restricts the authority of citizens to enforce the requirements of the

ESA. The purpose of the proposed permit-shield provision was to provide

that the Services would not utilize Section 11(e) of the ESA to enforce

Section 9 prohibitions against a permittee who is in full compliance

with the terms and conditions of a permit. The permit-shield provision

would not, therefore, have restricted citizen suits.

Issue 15: Commenters believe that the regulatory assurances

provided to the permittee deprive citizens of the right to have general

oversight of HCPs, including challenging government's management

decisions, guaranteeing that landowners are in compliance with the

agreements, and ensuring that the plans are actually working to

conserve listed species.

Response 15: The No Surprises assurances do not deprive citizens of

HCP oversight or of their ability to challenge an improperly issued HCP

permit. In addition, all Service decision documents (such as approval

of HCP management plans) are part of the Administrative Record for any

individual HCP and are available to any member of the public upon

request. Nothing in this rule prevents citizens from challenging the

adequacy of those decisions or bringing HCP permit terms and conditions

compliance issues to the Services' attention. The Services welcome

citizen input on HCP implementation. Public comments must be considered

in all permit decisions. Providing No Surprises assurances to an HCP

permittee does not eliminate this public comment period. In addition,

the Services or any party designated as responsible by the Services

(e.g., State wildlife agency, local government) in the HCP will be

expected to monitor the project for compliance with the terms of the

incidental take permit and HCP. The Services also require periodic

reporting from the permittee in order to maintain oversight to ensure

the implementation of the HCP's terms and conditions. The final rule

does nothing to affect these reporting requirements.

Issue 16: Numerous commenters stated that the proposed regulation

should provide for permits to contain a reopener clause. Any entity

(e.g., landowners, government agencies, ecologists, environmentalists)

would then be able to reopen the permit for any of the following

reasons: 1) Any

[[Page 8866]]

party fails to implement the terms and conditions of the permit; (2)

new listings of any species not covered; and (3) monitoring indicates

that conservation goals are not being met and that the operating

conservation program is ineffective.

Response 16: The HCP process already provides various mechanisms

for reopening an HCP. First, the Services may suspend, or in certain

circumstances, revoke all or part of the privileges authorized by a

permit if the permittee does not comply with the terms and conditions

of the permit or with applicable laws and regulations governing the

permitted activity. If an HCP permit is suspended or revoked,

incidental take must cease. The provisions of most HCPs expressly

address permit suspension or revocation procedures. Second, if a

species was not initially listed on an HCP permit, it may not be

automatically covered by an HCP when subsequently listed. For example,

if a species was not originally listed on a permit, the HCP must be

formally amended. Amendment of a section 10(a)(1)(B) permit is also

required when the permittee wishes to significantly modify the project,

activity, or conservation program as described in the original HCP.

Such modifications might include significant boundary revisions,

alterations in funding or schedule, or an addition of a species to the

permit that was not addressed in the original HCP. The Services

encourage the public to provide them with applicable information

concerning any approved HCP that would be useful in evaluating the

effectiveness of the HCP or other concerns they may have.

Issue 17: Numerous commenters stated that the assurances provided

through these proposed regulations should not be automatic and should

be commensurate with risk, and that the Services should provide

assurances to a permittee only if the HCP includes specific objectives

or measurable biological goals that must be met and that would ensure

the conservation of the species, if they are attained.

Response 17: The Services believe that the commitments of an HCP

must be specifically identified and scientifically based, reflecting

the particular needs of the species that are covered. Thus, the concept

of comparative risk to various species is factored in by the Services

as they assess the adequacy of the operating conservation program for a

given HCP. The Services will not approve an HCP permit request found to

be inadequate, but will provide No Surprises assurances to all HCPs

that are found to be adequate.

For many recent HCPs, the Services are defining specific biological

goals. Furthermore, comprehensive monitoring programs provide added

value for measuring progress toward meeting the goals and commitments

and ensuring that the permittee is in compliance with the permit. The

Services often incorporate monitoring measures to assess whether goals

are being met, especially in cases where additional information may be

desirable or there is significant scientific uncertainty. If existing

data makes it difficult to predict exactly what measures are needed to

achieve a biological objective, then an adaptive management strategy is

usually required. Adaptive management, which then becomes an integral

component of the operating conservation program, is not negated by the

No Surprises assurances because it was a part of the HCP's operating

conservation program as approved by the Services.

Issue 18: Most commenters stated that to get assurances, a

multispecies HCP must adequately cover each individual species rather

than collectively cover a group of species defined by some type of

commonality (e.g., guild or habitat).

Response 18: The Services believe that each species in a

multispecies HCP must be adequately addressed by satisfying the permit

issuance criteria under section 10(a)(2)(B) of the ESA. The Services

believe, nevertheless, that in some cases, using a ``guilding'' or

habitat-based approach to craft preserve designs or management measures

may be appropriate.

However, even when such tools are used, the Services will ensure

that for each species that receives assurances, the species must be

specifically named in the HCP, and adequate conservation measures are

included in the plan.

Issue 19: Commenters believe that to get assurances, an HCP must

have an adequate and comprehensive biological monitoring program that

addresses all foreseeable changes in circumstances that may occur over

the lifetime of the permit.

Response 19: Monitoring is already an element of HCPs under the

Services' Federal regulations [50 CFR 17.22(b)(1), 17.32(b)(1), and

222.22]. Monitoring is also an important tool for HCPs, and their

associated permit and Implementing Agreements, and should be properly

designed and implemented. The scope of the monitoring program should be

sufficient to address reasonably foreseeable changes in circumstances

that occur during the life of the permit. Monitoring is needed to

obtain the information necessary to properly assess the impacts from

the HCP and to ensure that HCPs are properly implemented. Monitoring

will also allow the use of the scientific data obtained on the effects

of the plan's operating conservation program to modify specific

strategies through adaptive management, and to enhance future

strategies for the conservation of species and their habitat.

While the Services appreciate the numerous benefits of a well-

developed monitoring program, some low-effect HCPs have minimal

monitoring requirements because the impacts from the plan are minor or

negligible, and the attempt by the commenters to make an extensive

monitoring program a requirement for No Surprises assurances is

misplaced. A well-developed monitoring program will add to the

credibility of an HCP proposal and will facilitate the eventual

approval of the HCP. Thus, the Services believe that the real test for

receiving the No Surprises assurances should be whether the issuance

criteria under section 10(a) have been satisfied, and not whether a

particular conservation tool, such as monitoring, has been extensively

employed under an HCP whether it is needed or not.

Issue 20: Numerous commenters stated that to get assurances for

unlisted species, a plan must be in place that describes what is

necessary for their long-term conservation. Commenters encouraged a

standard for unlisted species equal to that used in the proposed policy

and regulations for the Candidate Conservation Agreements (CCAs).

Response 20: While the Services agree that these two types of

agreements are similar, the purposes of the proposed CCA policy and the

No Surprises rule are somewhat different. As stated in the proposed CCA

policy, the ultimate goal of these agreements is to encourage

landowners and State and local land managing agencies to manage their

lands in a manner that, if adopted on a broad enough scale by similarly

situated landowners, would remove threats to species and thereby

obviate the need to list them under the ESA. The purposes of including

unlisted species in HCPs and of making them subject to No Surprises

assurances, are to enlist landowners in efforts to conserve these

species and to provide certainty to landowners who are willing to make

long-term commitments to the conservation of listed and unlisted

species that they will not be subjected to additional conservation and

mitigation measures if one of the species is listed, except as provided

in their HCPs. The standards for including an unlisted species under an

HCP are the

[[Page 8867]]

issuance criteria under section 10(a)(2)(B) of the ESA. For HCPs, the

Services will continue to use the conservation standard identified in

the Habitat Conservation Planning Handbook for unlisted species. The

Handbook clearly states that an unlisted species is ``adequately

covered'' in an HCP only if it is treated as if it were listed pursuant

to section 4 of the ESA, and if the HCP meets the permit issuance

criteria in section 10(a)(2)(B) of the ESA with respect to the species.

The No Surprises assurances apply only to species (listed and unlisted)

that are adequately covered in the HCP. Species, whether listed or

nonlisted, will not be included in the HCP permit if data gaps or

insufficient information make it impossible to craft conservation and

mitigation measures for them, unless these data gaps can be overcome

through the inclusion of adaptive management clauses in the HCP.

Issue 21: Many commenters requested an addition to the rule that

would address the early termination of an HCP. Commenters want the

Services to discuss the possibility of terminating an HCP, including

how the assurances and applicable mitigation apply to the termination.

Response 21: The Services believe that such a requested change is

unnecessary. The No Surprises assurances apply during the life of the

permit, provided that the HCP is properly implemented and the terms and

conditions of the HCP incidental take permit are being followed. Should

a permit be terminated early, the No Surprises assurances also

terminate as of the same date. The question of how outstanding

mitigation responsibilities should be handled upon early termination is

a more generic HCP policy issue that is unrelated to the No Surprises

assurances and is, therefore, beyond the scope of this particular

rulemaking.

Issue 22: Several commenters stated that the proposed rule was

confusing regarding the different level of assurances established in

the proposed rule (for regular HCPs and for HCPs that provide a ``net

benefit'' to the covered species) and that the distinction between the

two levels should be clarified further or only one level of assurances

should be provided to HCP permittees.

Response 22: The Services agree that these distinctions were

unnecessarily confusing and have revised the final rule accordingly.

The final rule requires the Services to provide only one level of

assurances to any permittee that has an approved HCP permit. The

Services eliminated the level of assurances for HCPs that were

developed to provide a net benefit for the covered species since the

distinction between the two types of HCPs were very difficult to

delineate in practice.

Issue 23: Commenters noted that there were differences between the

regulations, such as FWS use of the term ``unforeseen'' circumstances

throughout the proposed rule, whereas NMFS used the terms

``unforeseen'' and ``extraordinary'' circumstances in their proposed

rule.

Response 23: The Services agree that there was some confusion and

have made the regulations consistent between the two agencies, where

possible. Moreover, there was never an intention in the August 1994 No

Surprises announcement to create a substantive difference between

``unforeseen'' and ``extraordinary'' circumstances. NMFS will use the

term ``unforeseen'' in its regulations in place of ``extraordinary.''

Revisions to the Proposed Rule

The following represents a summary of the revisions to the proposed

rule as a result of the consideration of the public comments received

during this rulemaking process. The Services have rewritten the

``Assurances'' section of the preamble and regulatory language to

improve clarity and readability. Many commenters were confused by the

language in the proposed rule, and asked the Services to provide a

clearer explanation of this section. Accordingly, the Services have

edited and reorganized the Assurances provision, but have not made any

substantive changes.

(1) Some of the definitions used in this rulemaking process will

now be codified as definitions in 50 CFR 17.3 for FWS and 50 CFR 222.3

for NMFS. These definitions were concepts identified in the

``Background'' section of the proposed rule.

(2) The rule was revised so the Services will only provide

assurances for species listed on a permit that are adequately covered

in the conservation plan and specifically identified on the permit.

(3) The Services have clarified that the duration of the assurances

is the same as the length of the permit.

(4) The Services revised the rule so that there is only one level

of assurances provided to permittees, instead of one level of

assurances for standard HCPs and another level for HCPs that were

developed to provide a ``net benefit'' for the covered species.

(5) The Services have clarified the rule so that it is apparent

that No Surprises assurances do not apply to Federal agencies who have

a continuing obligation to contribute to the conservation of threatened

and endangered species under section 7(a)(1) of the ESA.

(6) The Services believe that HCPs are, and will continue to be,

carefully crafted so that unforeseen circumstances will be rare, if at

all, and that the Services will be able to successfully handle any

unforeseen circumstance so that species are not jeopardized. To help

ensure that unforeseen circumstances are a rare occurrence, the Service

revised the rule in appropriate areas.

(7) The Services replaced the term ``properly functioning,'' which

was used in the proposed rule to ``properly implemented.'' This change

accurately reflects the intent of the Services when discussing the

implementation of HCPs.

(8) The Services eliminated the permit-shield provisions from the

final rule.

(9) The Services revised the final rule by replacing the term

``property interests'' with the term ``natural resources,'' which more

accurately describes the intent of the Services.

Description/Overview of the Final Habitat Conservation Plan Assurances

(``No Surprises'' Policy) Rule

The information presented below briefly describes the ``No

Surprises'' assurances adopted in this final rule. These assurances

provide economic and regulatory certainty for non-Federal property

owners that participate in the ESA's section 10(a)(1)(B) permitting

process through the following:

1. General assurances. The No Surprises assurances apply only to

incidental take permits issued in accordance with the requirements of

the Services' regulations where the conservation plan is being properly

implemented, and apply only to species adequately covered by the

conservation plan.

Discussion: Once an HCP permit has been issued and its terms and

conditions are being fully complied with, the permittee may remain

secure regarding the agreed upon cost of conservation and mitigation.

If the status of a species addressed under an HCP unexpectedly worsens

because of unforeseen circumstances, the primary obligation for

implementing additional conservation measures would be the

responsibility of the Federal government, other government agencies, or

other non-Federal landowners who have not yet developed an HCP.

``Adequately covered'' under an HCP for listed species refers to

any species addressed in an HCP that has satisfied the permit issuance

criteria under section 10(a)(2)(B) of the ESA. For

[[Page 8868]]

unlisted species, the term refers to any species that is addressed in

an HCP as if it were listed pursuant to section 4 of the ESA and is

adequately covered by HCP conditions that would satisfy permit issuance

criteria under section 10(a)(2)(B) of the ESA if the species were

actually listed. For a species to be covered under a HCP it must be

listed on the section 10(a)(1)(B) permit. These assurances apply only

to species that are ``adequately covered'' in the HCP.

``Properly implemented conservation plan'' means any HCP,

Implementing Agreement, and permit whose commitments and provisions

have been and are being fully implemented by the permittee and in which

the permittee is in full compliance with the terms and conditions of

the permit, so the HCP is consistent with the agreed-upon operating

conservation program for the project.

2. Changed circumstances provided for in the plan. If additional

conservation and mitigation measures are deemed necessary to respond to

changes in circumstances that were provided for in the plan's operating

conservation program, the permittee will be expected to implement the

measures specified in the plan.

3. Changed circumstances not provided for in the plan. If

additional conservation and mitigation measures are deemed necessary to

respond to changed circumstances that were not provided for in the

plan's operating conservation program, the Services will not require

any conservation and mitigation measures in addition to those provided

for in the plan without the consent of the permittee, provided the plan

is being properly implemented.

Discussion: It is important to distinguish between ``changed'' and

``unforeseen'' circumstances. Many changes in circumstances during the

course of an HCP can reasonably be anticipated and planned for in the

conservation plan (e.g., the listing of new species, or a fire or other

natural catastrophic event in areas prone to such events), and the

plans should describe the modifications in the project or activity that

will be implemented if these circumstances arise. ``Unforeseen

circumstances'' are changes in circumstances affecting a species or

geographic area covered by an HCP that could not reasonably have been

anticipated by plan developers or the Services at the time of the HCP's

negotiation and development, and that result in a substantial and

adverse change in the status of a covered species (e.g., the eruption

of Mount St. Helens was not reasonably foreseeable).

4. Unforeseen circumstances. In negotiating unforeseen

circumstances, the Services will not require without the consent of the

permittee, the commitment of additional land, water or financial

compensation or additional restrictions on the use of land, water,

including quantity and timing of delivery, or other natural resources

beyond the level otherwise agreed upon for the species covered by the

conservation plan.

If additional conservation and mitigation measures are deemed

necessary to respond to unforeseen circumstances, the Services may

require additional measures of the permittee where the conservation

plan is being properly implemented, but only if such measures are

limited to modifications within conserved habitat areas, if any, or to

the conservation plan's operating conservation program for the affected

species, and maintain the original terms of the conservation plan to

the maximum extent possible. Additional conservation and mitigation

measures will not involve the commitment of additional land, water or

financial compensation or restrictions on the use of land, water

(including quantity and timing of delivery), or other natural resources

otherwise available for development or use under the original terms of

the conservation plan, without the consent of the permittee.

In determining unforeseen circumstances, the Services will have the

burden of demonstrating that such unforeseen circumstances exist, using

the best scientific and commercial data available. These findings must

be clearly documented and based upon reliable technical information

regarding the status and habitat requirements of the affected species.

The Services will consider, but not be limited to, the following

factors: size of the current range of the affected species; percentage

of range adversely affected by the conservation plan; percentage of

range conserved by the conservation plan; ecological significance of

that portion of the range affected by the conservation plan; level of

knowledge about the affected species and the degree of specificity of

the species' conservation program under the conservation plan; and

whether failure to adopt additional conservation measures would

appreciably reduce the likelihood of survival and recovery of the

affected species in the wild.

Discussion: The first criterion is self-explanatory. The second

identifies factors to be considered by the Services in determining

whether the unforeseen circumstances are biologically significant.

Generally, the inquiry would focus on the level of biological threats

to the affected species covered by the HCP and the degree to which the

welfare of those species is tied to a particular HCP. For example, if a

species is declining rapidly, and the HCP encompasses an ecologically

insignificant portion of the species' range, then unforeseen

circumstances warranting reconsideration of an HCP's conservation

program typically would not exist because the overall effect of the HCP

upon the species would be negligible or insignificant. Conversely, if a

species is declining rapidly and the HCP in question encompasses a

majority of the species' range, then unforeseen circumstances

warranting a review of an HCP's conservation program probably would

exist. If unforeseen circumstances are found to exist, the Services

will consider changes in the operating conservation program or

additional mitigation measures. However, measures required of the

permittee must be as close as possible to the terms of the original HCP

and must be limited to modifications within any conserved habitat area

or to adjustments within lands or waters that are already set aside in

the HCP's operating conservation program. ``Conserved habitat areas''

are areas explicitly designated for habitat restoration, acquisition,

protection, or other conservation uses under an HCP. An ``operating

conservation program'' consists of the conservation management

activities, which are expressly agreed upon and described in an HCP or

its Implementing Agreement and that are undertaken for the affected

species when implementing an approved HCP. Any adjustments or

modifications will not include requirements for additional land, water,

or financial compensation, or additional restrictions on the use of

land, water (including quantity and timing of delivery), or other

natural resources otherwise available for development or use under the

HCP, unless the permittee consents to such additional measures.

Modifications within conserved habitat areas or to the HCP's

operating conservation program means changes to the plan areas

explicitly designated for habitat protection or other conservation uses

under the HCP, or changes that increase the effectiveness of the HCP's

operating conservation program, provided that any such changes do not

impose new restrictions or require additional financial compensation on

the permittee's activities. Thus, if an HCP's operating conservation

program originally included a mixture of predator depredation control

and captive breeding, but subsequent

[[Page 8869]]

research or information demonstrated that one of these was considerably

more effective than the other, the Services would be able to request an

adjustment in the proportionate use of these tools, provided that such

an adjustment did not increase the overall costs to the HCP permittee.

Additionally, the No Surprises assurance does not preclude any Federal

agency from exercising its Federal reserved water rights.

The ``Unforeseen circumstances'' section of the HCP should discuss

the process for addressing those future changes in circumstances

surrounding the HCP that could not reasonably be anticipated by HCP

planners. While HCP permittees will not be responsible for bearing any

additional economic burden for more mitigation measures, other methods

remain available to respond to the needs of the affected species and to

assure that the goals of the ESA are satisfied. These include

increasing the effectiveness of the HCP's operating conservation

program by adjusting the program in a way that does not result in a net

increase in costs to the permittee, and actions taken by the government

or voluntary conservation measures taken by the permittee.

When negotiating the unforeseen provisions in an HCP, the permittee

cannot be required to commit additional land, funds, or additional

restrictions on lands, water (including quantity and timing of

delivery) or other natural resources released under an HCP for

development or use from any permittee who is implementing the HCP and

is abiding by all of the permit terms and conditions in good faith or

has fully implemented their commitments under an approved HCP.

Moreover, this rule does not preempt or affect any Federal reserved

water rights.

In the event of unforeseen circumstances, the Services will work

with the permittee to increase the effectiveness of the HCP's operating

conservation program to address the unforeseen circumstances without

requiring the permittee to provide an additional commitment of

resources as stated above. The specific nature of the requested changes

to the operating conservation program will vary among HCPs depending

upon individual habitat and species needs.

5. Nothing in this rule will be construed to limit or constrain the

Services, any Federal, State, local, or Tribal government agency, or a

private entity, from taking additional actions at its own expense to

protect or conserve a species included in a conservation plan.

Discussion: This means the Services or other entities can intervene

on behalf of a species at their own expense at any time and be

consistent with the assurances provided to the permittee under this

final rule. However, it is unlikely that the Services would have to

resort to protective or conservation action requiring new

appropriations of funds by Congress in order to meet their commitment

under this final rule (consistent with their obligations under the

ESA). If this unlikely event occurred, these actions would be subject

to the requirements of the Anti-Deficiency Act and the availability of

funds appropriated by Congress.

Also, nothing in this final rule prevents the Services from asking

a permittee to voluntarily undertake additional mitigation on behalf of

affected species. While an HCP permittee who has been implementing the

HCP and permit terms and conditions in good faith would not be

obligated to provide additional mitigation, the Services believe that

many landowners would be willing to consider additional conservation

assistance on a voluntary basis if a compelling argument for assistance

could be made.

The Services believe that it will be rare for unforeseen

circumstances to result in a jeopardy situation. However, in such

cases, the Services will use all of their authorities, will work with

other Federal agencies to rectify the situation, and work with the

permittee to redirect conservation and mitigation measures so as to

offset the likelihood of jeopardy. The Services have a wide array of

authorities and resources that can be used to provide additional

protection for threatened or endangered species covered by an HCP.

Required Determinations

A major purpose of this final rule is to provide section

10(a)(1)(B) permittees regulatory assurances related to the issuance of

an HCP permit. From the Federal government's perspective,

implementation of this rule would not result in additional expenditures

to the permittee that are above and beyond that already required

through the section 10(a)(1)(B) permitting process. There are, however,

benefits derived from HCPs for both the non-Federal permittees and the

species covered by the HCPs. HCPs are mechanisms that allow non-Federal

entities to continue with economic use or development activities, while

factoring species' conservation needs into natural resource management

decisions. Benefits to the covered species may include the conservation

of lands and waters upon which the species depends, decreased habitat

fragmentation, the removal of threats to candidate, proposed, or other

unlisted species, and in various instances, advancement of the recovery

of listed species. Non-Federal entities are then provided regulatory

assurances pursuant to an approved incidental take permit under section

10(a)(1)(B) of the ESA for those species that are adequately covered by

the permit, conditioned, of course, on the proper implementation of the

HCP. Since the Habitat Conservation Plan Assurances (``No Surprises''

policy) impose no additional economic costs or burdens upon an HCP

permittee, the Services have determined that the final rule would not

result in significant costs of implementation to non-Federal entities.

Information Collection/Paperwork Reduction Act

No significant effects are expected on non-Federal entities

exercising their option to enter into the HCP planning program because

there is no additional information required during the HCP development

or processing phase due solely to these regulatory assurances.

The Services have examined this final rule under the Paperwork

Reduction Act of 1995 and found it to contain no requests for

additional information or increase in the collection requirements

associated with incidental take permits other than those already

approved for incidental take permits with OMB approval #1018-0094,

which has an expiration date of February 28, 2001.

Economic Analysis

This final rule was subject to Office of Management and Budget

review under Executive Order 12866. However, the Services have

determined that there will be no additional costs placed on the non-

Federal entity associated with this final regulation. The No Surprises

policy, which was drafted in 1994, went through a public comment period

as part of the draft 1994 Habitat Conservation Planning Handbook (59 FR

65782, December 21, 1994), was included in the final 1996 Habitat

Conservation Planning Handbook (61 FR 63854, December 2, 1996), and

currently is being implemented in individual HCP permits as they are

issued after an opportunity for public comment. The No Surprises

assurances provided to permittees through these final rules apply to

the HCP permitting process only, and the Services have determined that

there will be no additional information required of non-Federal

entities through the HCP permitting process to provide assurances to

the permittee.

The Department of the Interior has certified that this rulemaking

will not

[[Page 8870]]

have a significant economic impact on a substantial number of small

entities, which includes businesses, organizations, or governmental

jurisdictions. This final rule will provide non-Federal entities

regulatory certainty pursuant to an approved incidental take permit

under section 10(a)(1)(B) of the Act. No significant effects are

expected on non-Federal entities exercising their option to enter into

the HCP planning program because there will be no additional

information required through the HCP process due to the application of

assurances or ``No Surprises.'' Therefore, this rule would have a

minimal effect on such entities. NMFS has also reviewed this rule under

the Regulatory Flexibility Act of 1980 and concurs with the above

certification.

The implementation of the final Habitat Conservation Plan

Assurances rule does not require any additional data not already

required by the HCP process. Regulatory assurances are provided to the

permittee if the HCP is properly implemented, and if all the terms and

conditions of the HCP, permit, or Implementing Agreement are all being

met. The underlying economic basis of comparing the final rule with and

without the assurances was used to determine if there existed any

potential economic effects from implementing this policy. Since the

rule is being implemented with existing data, there are no incremental

costs being imposed on non-Federal landowners. The benefits generated

by this rule are being shared by the Services (i.e., less habitat

fragmentation, habitat management, and protection for covered species)

and by non-Federal landowners (i.e., assurances that approved HCPs will

allow for future economic uses of non-Federal land without further

conservation and mitigation measures).

There are no specific data to assess the effects on businesses from

this rule. To the extent businesses are affected, however, such effects

would be positive, not negative. Until specific HCPs are approved, it

is not possible to determine effects on commodity prices, competition

or jobs. Moreover, any economic effects would likely be tied to the

cost of the development and implementation of the HCP itself and not to

these assurances. There is a positive effect expected on the

environment because these assurances act as an incentive for non-

Federal entities to seek HCPs and to factor species conservation needs

into national resources management decisions. No effect on public

health and safety is expected from this rule. Therefore, this rule most

likely would not have a significant effect on a substantial number of

small entities.

The Services have determined and certify pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities. No additional information will

be required from a non-Federal entity solely as a result of these

assurances.

Civil Justice Reform

The Departments have determined that these final regulations meet

the applicable standards provided in sections 3(a) and 3(b)(2) of

Executive Order 12988.

National Environmental Policy Act

The Department has determined that the issuance of the final rule

is categorically excluded under the Department of the Interior's NEPA

procedures in 516 DM 2, Appendix 1.10. NMFS concurs with the Department

of Interior's determination that the issuance of the final rule

qualifies for a categorical exclusion and falls within the categorical

exclusion criteria in NOAA 216-3 Administrative Order, Environmental

Review Procedure.

List of Subjects

50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

50 CFR Part 222

Administrative practices and procedure, Endangered and threatened

species, Exports, Imports, Reporting and recordkeeping requirements,

Transportation.

For the reasons set out in the preamble, the Services amend Title

50, Chapter I, subchapter B; and Title 50, Chapter II, subchapter C of

the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

Subpart C--Endangered Wildlife

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. The FWS amends Sec. 17.3 by adding the following definitions

alphabetically to read as follows:

* * * * *

Adequately covered means, with respect to species listed pursuant

to section 4 of the ESA, that a proposed conservation plan has

satisfied the permit issuance criteria under section 10(a)(2)(B) of the

ESA for the species covered by the plan, and, with respect to unlisted

species, that a proposed conservation plan has satisfied the permit

issuance criteria under section 10(a)(2)(B) of the ESA that would

otherwise apply if the unlisted species covered by the plan were

actually listed. For the Services to cover a species under a

conservation plan, it must be listed on the section 10(a)(1)(B) permit.

* * * * *

Changed circumstances means changes in circumstances affecting a

species or geographic area covered by a conservation plan that can

reasonably be anticipated by plan developers and the Service and that

can be planned for (e.g., the listing of new species, or a fire or

other natural catastrophic event in areas prone to such events).

Conserved habitat areas means areas explicitly designated for

habitat restoration, acquisition, protection, or other conservation

purposes under a conservation plan.

Conservation plan means the plan required by section 10(a)(2)(A) of

the ESA that an applicant must submit when applying for an incidental

take permit. Conservation plans also are known as ``habitat

conservation plans'' or ``HCPs.''

* * * * *

Operating conservation program means those conservation management

activities which are expressly agreed upon and described in a

conservation plan or its Implementing Agreement, if any, and which are

to be undertaken for the affected species when implementing an approved

conservation plan, including measures to respond to changed

circumstances.

* * * * *

Properly implemented conservation plan means any conservation plan,

Implementing Agreement and permit whose commitments and provisions have

been or are being fully implemented by the permittee.

* * * * *

Unforeseen circumstances means changes in circumstances affecting a

species or geographic area covered by a conservation plan that could

not reasonably have been anticipated by plan developers and the Service

at the time of the conservation plan's negotiation and development, and

that result in a substantial and adverse

[[Page 8871]]

change in the status of the covered species.

* * * * *

3. The FWS amends Sec. 17.22 by adding paragraphs (b) (5) and (6)

to read as follows:

Sec. 17.22 Permits for scientific purposes, enhancement of propagation

or survival, or for incidental taking.

* * * * *

(b) * * *

(5) Assurances provided to permittee in case of changed or

unforeseen circumstances. The assurances in this paragraph (b)(5) apply

only to incidental take permits issued in accordance with paragraph

(b)(2) of this section where the conservation plan is being properly

implemented, and apply only with respect to species adequately covered

by the conservation plan. These assurances cannot be provided to

Federal agencies. This rule does not apply to incidental take permits

issued prior to March 25, 1998. The assurances provided in incidental

take permits issued prior to March 25, 1998 remain in effect, and those

permits will not be revised as a result of this rulemaking.

(i) Changed circumstances provided for in the plan. If additional

conservation and mitigation measures are deemed necessary to respond to

changed circumstances and were provided for in the plan's operating

conservation program, the permittee will implement the measures

specified in the plan.

(ii) Changed circumstances not provided for in the plan. If

additional conservation and mitigation measures are deemed necessary to

respond to changed circumstances and such measures were not provided

for in the plan's operating conservation program, the Director will not

require any conservation and mitigation measures in addition to those

provided for in the plan without the consent of the permittee, provided

the plan is being properly implemented.

(iii) Unforeseen circumstances. (A) In negotiating unforeseen

circumstances, the Director will not require the commitment of

additional land, water, or financial compensation or additional

restrictions on the use of land, water, or other natural resources

beyond the level otherwise agreed upon for the species covered by the

conservation plan without the consent of the permittee.

(B) If additional conservation and mitigation measures are deemed

necessary to respond to unforeseen circumstances, the Director may

require additional measures of the permittee where the conservation

plan is being properly implemented, but only if such measures are

limited to modifications within conserved habitat areas, if any, or to

the conservation plan's operating conservation program for the affected

species, and maintain the original terms of the conservation plan to

the maximum extent possible. Additional conservation and mitigation

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 otherwise available for development

or use under the original terms of the conservation plan without the

consent of the permittee.

(C) The Director will have the burden of demonstrating that

unforeseen circumstances exist, using the best scientific and

commercial data available. These findings must be clearly documented

and based upon reliable technical information regarding the status and

habitat requirements of the affected species. The Director will

consider, but not be limited to, the following factors:

(1) Size of the current range of the affected species;

(2) Percentage of range adversely affected by the conservation

plan;

(3) Percentage of range conserved by the conservation plan;

(4) Ecological significance of that portion of the range affected

by the conservation plan;

(5) Level of knowledge about the affected species and the degree of

specificity of the species' conservation program under the conservation

plan; and

(6) Whether failure to adopt additional conservation measures would

appreciably reduce the likelihood of survival and recovery of the

affected species in the wild.

(6) Nothing in this rule will be construed to limit or constrain

the Director, any Federal, State, local, or Tribal government agency,

or a private entity, from taking additional actions at its own expense

to protect or conserve a species included in a conservation plan.

Subpart D--Threatened Wildlife

4. The FWS amends Sec. 17.32 by adding paragraphs (b)(5) and (6) to

read as follows:

Sec. 17.32 Permits--general.

* * * * *

(b) * * *

(5) Assurances provided to permittee in case of changed or

unforeseen circumstances. The assurances in this paragraph (b)(5) apply

only to incidental take permits issued in accordance with paragraph

(b)(2) of this section where the conservation plan is being properly

implemented, and apply only with respect to specifies adequately

covered by the conservation plan. These assurances cannot be provided

to Federal agencies. This rule does not apply to incidental take

permits issued prior to [insert 30 days after the date of publication

in the Federal Register]. The assurances provided in incidental take

permits issued prior to [insert 30 days after the date of publication

in the Federal Register] remain in effect, and those permits will not

be revised as a result of this rulemaking.

(i) Changed circumstances provided for in the plan. If additional

conservation and mitigation measures are deemed necessary to respond to

changed circumstances and were provided for in the plan's operating

conservation program, the permittee will implement the measures

specified in the plan.

(ii) Changed circumstances not provided for in the plan. If

additional conservation and mitigation measures are deemed necessary to

respond to changed circumstances and such measures were not provided

for in the plan's operating conservation program, the Director will not

require any conservation and mitigation measures in addition to those

provided for in the plan without the consent of the permittee, provided

the plan is being properly implemented.

(iii) Unforeseen circumstances. (A) In negotiating unforeseen

circumstances, the Director will not require the commitment of

additional land, water, or financial compensation or additional

restrictions on the use of land, water, or other natural resources

beyond the level otherwise agreed upon for the species covered by the

conservation plan without the consent of the permittee.

(B) If additional conservation and mitigation measures are deemed

necessary to respond to unforeseen circumstances, the Director may

require additional measures of the permittee where the conservation

plan is being properly implemented, but only if such measures are

limited to modifications within conserved habitat areas, if any, or to

the conservation plan's operating conservation program for the affected

species, and maintain the original terms of the conservation plan to

the maximum extent possible. Additional conservation and mitigation

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 otherwise available for development

or use under the original

[[Page 8872]]

terms of the conservation plan without the consent of the permittee.

(C) The Director will have the burden of demonstrating that such

unforeseen circumstances exist, using the best scientific and

commercial data available. These findings must be clearly documented

and based upon reliable technical information regarding the status and

habitat requirements of the affected species. The Director will

consider, but not be limited to, the following factors:

(1) Size of the current range of the affected species;

(2) Percentage of range adversely affected by the conservation

plan;

(3) Percentage of range conserved by the conservation plan;

(4) Ecological significance of that portion of the range affected

by the conservation plan;

(5) Level of knowledge about the affected species and the degree of

specificity of the species' conservation program under the conservation

plan; and

(6) Whether failure to adopt additional conservation measures would

appreciably reduce the likelihood of survival and recovery of the

affected species in the wild.

(6) Nothing in this rule will be construed to limit or constrain

the Director, any Federal, State, local, or Tribal government agency,

or a private entity, from taking additional actions at its own expense

to protect or conserve a species included in a conservation plan.

PART 222--ENDANGERED FISH OR WILDLIFE

5. The authority citation for part 222 is revised to read as

follows:

Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

Subpart C--Endangered Fish or Wildlife Permits

6. In part 222, a new section is added to read as follows:

222.3 Definitions.

These definitions apply only to Sec. 222.22:

Adequately covered means, with respect to species listed pursuant

to section 4 of the ESA, that a proposed conservation plan has

satisfied the permit issuance criteria under section 10(a)(2)(B) of the

ESA for the species covered by the plan and, with respect to unlisted

species, that a proposed conservation plan has satisfied the permit

issuance criteria under section 10(a)(2)(B) of the ESA that would

otherwise apply if the unlisted species covered by the plan were

actually listed. For the Services to cover a species under a

conservation plan, it must be listed on the section 10(a)(1)(B) permit.

Changed circumstances means changes in circumstances affecting a

species or geographic area covered by a conservation plan that can

reasonably be anticipated by plan developers and NMFS and that can be

planned for (e.g., the listing of new species, or a fire or other

natural catastrophic event in areas prone to such events).

Conserved habitat areas means areas explicitly designated for

habitat restoration, acquisition, protection, or other conservation

purposes under a conservation plan.

Conservation plan means the plan required by section 10(a)(2)(A) of

the ESA that an applicant must submit when applying for an incidental

take permit. Conservation plans also are known as ``habitat

conservation plans'' or ``HCPs.''

Operating conservation program means those conservation management

activities which are expressly agreed upon and described in a

conservation plan or its Implementing Agreement, if any, and which are

to be undertaken for the affected species when implementing an approved

conservation plan, including measures to respond to changed

circumstances.

Properly implemented conservation plan means any conservation plan,

Implementing Agreement and permit whose commitments and provisions have

been or are being fully implemented by the permittee.

Unforeseen circumstances means changes in circumstances affecting a

species or geographic area covered by a conservation plan that could

not reasonably have been anticipated by plan developers and NMFS at the

time of the conservation plan's negotiation and development, and that

result in a substantial and adverse change in the status of the covered

species.

Sec. 222.22 [Amended]

7. In Sec. 222.22, paragraphs (g) and (h) are added.

* * * * *

(g) Assurances provided to permittee in case of changed or

unforeseen circumstances. The assurances in this paragraph (g) apply

only to incidental take permits issued in accordance with paragraph (c)

of this section where the conservation plan is being properly

implemented, and apply only with respect to species adequately covered

by the conservation plan. These assurances cannot be provided to

Federal agencies. This rule does not apply to incidental take permits

issued prior to March 25, 1998. The assurances provided in incidental

take permits issued prior to March 25, 1998 remain in effect, and those

permits will not be revised as a result of this rulemaking.

(1) Changed circumstances provided for in the plan. If additional

conservation and mitigation measures are deemed necessary to respond to

changed circumstances and were provided for in the plan's operating

conservation program, the permittee will implement the measures

specified in the plan.

(2) Changed circumstances not provided for in the plan. If

additional conservation and mitigation measures are deemed necessary to

respond to changed circumstances and such measures were not provided

for in the plan's operating conservation program, NMFS will not require

any conservation and mitigation measures in addition to those provided

for in the plan without the consent of the permittee, provided the plan

is being properly implemented.

(3) Unforeseen circumstances. (i) In negotiating unforeseen

circumstances, NMFS will not require the commitment of additional land,

water, or financial compensation or additional restrictions on the use

of land, water, or other natural resources beyond the level otherwise

agreed upon for the species covered by the conservation plan without

the consent of the permittee.

(ii) If additional conservation and mitigation measures are deemed

necessary to respond to unforeseen circumstances, NMFS may require

additional measures of the permittee where the conservation plan is

being properly implemented, but only if such measures are limited to

modifications within conserved habitat areas, if any, or to the

conservation plan's operating conservation program for the affected

species, and maintain the original terms of the conservation plan to

the maximum extent possible. Additional conservation and mitigation

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 otherwise available for development

or use under the original terms of the conservation plan without the

consent of the permittee.

(iii) NMFS will have the burden of demonstrating that unforeseen

circumstances exist, using the best scientific and commercial data

available. These findings must be clearly documented and based upon

reliable technical information regarding the status and habitat

requirements of the affected species. NMFS will

[[Page 8873]]

consider, but not be limited to, the following factors:

(A) Size of the current range of the affected species;

(B) Percentage of range adversely affected by the conservation

plan;

(C) Percentage of range conserved by the conservation plan;

(D) Ecological significance of that portion of the range affected

by the conservation plan;

(E) Level of knowledge about the affected species and the degree of

specificity of the species' conservation program under the conservation

plan; and

(F) Whether failure to adopt additional conservation measures would

appreciably reduce the likelihood of survival and recovery of the

affected species in the wild.

(h) Nothing in this rule will be construed to limit or constrain

the Assistant Administrator, any Federal, State, local, or tribal

government agency, or a private entity, from taking additional actions

at its own expense to protect or conserve a species included in a

conservation plan.

Dated: February 13, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

Dated: February 11, 1998.

Donald J. Barry,

Acting Assistant Secretary, Fish, Wildlife, and Parks, Department of

Interior.

[FR Doc. 98-4367 Filed 2-20-98; 8:45 am]

BILLING CODE 4310-55-P