Announcement of Final Safe Harbor Policy

SUMMARY: The Fish and Wildlife Service (FWS) and the National Marine

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

announce a final Safe Harbor policy under the Endangered Species Act of

1973, as amended (Act). This policy provides incentives for private and

other non-Federal property owners to restore, enhance, or maintain

habitats for listed species. Because many endangered and threatened

species occur exclusively, or to a large extent, on non-Federally owned

property, the involvement of non-Federal property owners in the

conservation and recovery of listed species is critical to the eventual

success of these efforts. Under the policy, the Services will provide

participating property owners with technical assistance to develop Safe

Harbor Agreements (Agreements) that manage habitat for listed species,

and provide assurances that additional land, water, and/or natural

resource use restrictions will not be imposed as a result of their

voluntary conservation actions to benefit covered species. When the

property owner meets all the terms of the Agreement, the Services will

authorize incidental taking of the covered species at a level that

enables the property owner ultimately to return the enrolled property

back to agreed upon baseline conditions. The Services will closely

coordinate with the appropriate State agencies and any affected Native

American Tribal governments before entering into Agreements. The

Services considered and evaluated all the comments received on the

draft policy in developing this final policy. Additionally, the FWS is

publishing elsewhere in this issue of the Federal Register a final rule

that contains the necessary regulatory changes to implement this

policy.

DATES: This policy is effective July 19, 1999.

ADDRESSES: To obtain copies of the final Safe Harbor policy contact the

Chief, Division of Endangered Species, Fish and Wildlife Service, 452

ARLSQ, Washington, D.C. 20240 (Telephone 703/358-2171, Facsimile 703/

358-1735); or Chief, Endangered Species Division, National Marine

Fisheries Service, Office of Protected Resources, 1315 East-West

Highway, Silver Spring, MD, 20910 (Telephone 301/713-1401, Facsimile

301/713-0376).

FOR FURTHER INFORMATION CONTACT: Richard Hannan, Acting Chief, Division

of Endangered Species, Fish and Wildlife Service (Telephone (703)358-

2171) or Margaret Lorenz, Policy Coordinator, Endangered Species

Division, National Marine Fisheries Service (Telephone (301) 713-1401).

SUPPLEMENTARY INFORMATION:

Background

On June 12, 1997, the Services issued a draft policy (62 FR 32178),

and the FWS issued proposed regulations to implement the policy (62 FR

32189). With this policy, the Services intended to facilitate the

conservation of listed species through a collaborative approach with

non-Federal citizens, States, local governments, Tribes, businesses,

organizations, and other non-Federal property owners which are

stakeholders in the conservation of these species. With the proposed

policy and the related regulations, the Services intended to create

incentives for non-Federal property owners to implement conservation

measures for certain listed species by providing certainty with regard

to possible future land, water, or resource use restrictions should the

covered species later become more numerous as a result of the property

owners actions. Non-Federal property owners, who through a Safe Harbor

Agreement commit to implement voluntary conservation measures for a

listed species will receive assurances from the Services that

additional conservation measures will not be required and additional

land, water, or resource use restrictions will not be imposed should

the covered species become more numerous as a result of the property

owners' actions.

Much of the nation's current and potential fish and wildlife

habitat is on property owned by private citizens, States,

municipalities, Tribal governments, and other non-Federal entities.

Conservation efforts on non-Federal property are critical to the

survival and recovery of many endangered and threatened species. The

Services strongly believe that a collaborative stewardship approach to

the proactive management of listed species involving government

agencies (Federal, State, and local) and the private sector is critical

to achieving the ultimate goal of the Endangered Species Act (Act):

recovery of threatened and endangered species. The recovery of certain

species can benefit from short-term and mid-term enhancement,

restoration, or maintenance of terrestrial and aquatic habitats on non-

Federal property. The ``Safe Harbor'' approach provides an avenue to

garner the non-Federal landowners' support for species conservation on

non-Federal lands.

Many property owners are willing to voluntarily manage their

property to benefit listed fish and wildlife, provided these beneficial

actions do not result in new restrictions being placed on the future

use of their property. Beneficial management includes actions to

enhance, restore, or maintain habitat (e.g., restoring habitat through

prescribed burning, restoring hydrological conditions) so that it is

suitable for listed species. Because such proactive management actions

cannot be mandated or required by the Act, failure to conduct these

activities would not violate any of the Act's provisions. Although

property owners recognize the benefits of proactive habitat

conservation activities to help listed species, some are still

concerned that additional land, water, and/or natural resource use

restrictions may result if listed species colonize their property or

increase in numbers or distribution due to their conservation efforts.

Their concern centers on the applicability of the Act's section 9

``take'' prohibitions if listed species occupy their property, as a

result of their conservation-oriented property management actions.

Landowners whose properties support endangered or threatened species as

a result of their positive, voluntary conservation efforts might

violate section 9 of the Act if they significantly develop, modify, or

manage those properties in a way that subsequently causes incidental

take of those species.

Section 9 of the Act prohibits the ``take'' of listed fish and

wildlife species, which is defined in section 3(18) to include, among

other things, killing, harming or harassing. The Act's implementing

regulations, as promulgated by the FWS (50 CFR 17.3), and proposed by

NMFS (63 FR 24148) 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 and sheltering.''

This final Safe Harbor policy encourages property owners to

voluntarily conserve threatened and endangered species without the risk

of

[[Page 32718]]

further restrictions pursuant to section 9 of the Act. Previously, the

FWS has provided Safe Harbor type assurances to non-Federal property

owners based on various authorities under the Act, including incidental

take statements under section 7(a)(2) and incidental take permits under

section 10(a)(1)(B). After further consideration of such alternatives

and an evaluation of other provisions of the Act, the Services have

determined that the section 10(a)(1)(A) ``enhancement of survival''

permit provisions provide the best mechanism to carry out a permanent

Safe Harbor policy that provides the necessary assurances to

participating property owners, while also providing conservation

benefits to the covered species. For landowners who are participants in

other Federal programs (e.g., Farm Bill or Partners for Fish and

Wildlife programs), FWS is in the process of developing an appropriate

process to provide assurances on a programmatic basis to the landowners

as long as a net conservation benefit is achieved for listed species

covered by the Agreements. Assurances already provided by FWS under

sections 7 or 10(a)(1)(B) would still be valid, and revision of those

Agreements is unnecessary. Finalizing this policy provides national

consistency in the development of Safe Harbor Agreements (Agreements)

and links the policy to an expanded ``enhancement of survival'' permit

program through section 10(a)(1)(A) of the Act.

FWS has also published final regulations to implement this policy

in today's Federal Register. This final policy and final rule provides

the FWS procedures to implement the Safe Harbor policy. NMFS will

develop and propose regulatory changes to implement this policy at a

later date. These regulations will govern the issuance of ``enhancement

of survival'' permits under section 10(a) (1)(A) of the Act to provide

the assurances to participating landowners through Safe Harbor

Agreements.

Summary of the Draft Policy

The draft Safe Harbor policy (62 FR 32178) encouraged non-Federal

landowners to maintain or enhance existing endangered species habitat,

to restore listed species' habitats, or to manage their lands in a

manner that benefits listed species that would be covered by an

agreement. In return, the Services would provide assurances that future

activities would not be subject to the Act's restrictions beyond those

restrictions applicable to the property at the time of enrollment in

the program. The draft policy recognized that many non-Federal

landowners are interested in restoring, enhancing, and/or maintaining

natural habitats on their lands, thus potentially benefiting listed

species. However, non-Federal landowners' willingness may be hindered

by a fear that the Services will enforce section 9 due to their

beneficial actions, their lands are colonized by listed species, or

listed species' numbers increase.

The draft policy contained provisions protecting any listed species

covered by an Agreement and occupying a landowner's property at the

time of enrollment in the program by including them in the baseline

conditions. If species were included in the baseline conditions, an

``incidental take'' would not be allowed. However, if the numbers or

range of those covered species increases because of voluntary

conservation measures conducted in accordance with a Safe Harbor

Agreement, the landowner would be authorized to incidentally ``take''

those individuals above the baseline without penalty. These

arrangements would be formalized through a streamlined permitting

process and an Agreement or similar instrument between the landowner

and the Services. The draft policy also considered a streamlined

process where the Services would issue a blanket permit to an

appropriate agency or organization that would in turn issue

``Certificates of Inclusion'' or ``Participation Certificates'' to

landowners. The ultimate goal of the draft policy was to encourage non-

Federal landowners to voluntarily implement beneficial management

actions for those listed species that occur on their lands or would be

attracted as a result of the beneficial management actions.

Summary of Comments Received

The Services received more than 70 comment letters on the draft

policy from a wide variety of entities, including Federal, State and

County agencies, industry, conservation groups, coalitions, and private

individuals. The Services considered all relevant information and

recommendations received during the public comment period. Some of the

commenters addressed issues that were applicable to the implementing

regulations as well as the draft policy. Both the final policy and

regulations have been amended, where appropriate.

The following is a summary of the comments on the draft policy and

the Services' responses.

Issue 1. Many commenters expressed concern regarding the

appropriateness of the Services entering into Safe Harbor Agreements

and suggested that the Services provide guidance on how to determine

whether a Safe Harbor Agreement is appropriate and under what

circumstances the Services would enter into such Agreements.

Response 1. The Services agree that Safe Harbor Agreements may not

be appropriate for all types of species in all situations. If a

property owner is taking a listed species and needs an immediate

``incidental take'' authorization, application for and development of a

Habitat Conservation Plan (HCP) and issuance of an incidental take

permit under section 10(a)(1)(B) would be more appropriate. Safe Harbor

Agreements also are not appropriate in situations that do not meet the

net conservation benefit standards of this policy. The Services will

determine on a case-by-case basis whether or not a particular proposed

Agreement actually meets the standards of the Safe Harbor policy and

its implementing regulations and whether a Safe Harbor Agreement would

be an appropriate means of enhancing the survival of the species

covered by an agreement. For example, translocating individuals from a

habitat preserved in perpetuity to a site with zero baseline condition

may not achieve a net conservation benefit for the species. This is

because the habitat the species is using could be altered or destroyed,

which would put the species at risk. Each Agreement will have an

appropriate public review and comment period, and after considering all

available information, the Services will determine if the permit can be

issued.

Issue 2. Commenters stated that the concept of baseline and how

baseline conditions will be determined needs to be clarified. Some

commenters also provided recommendations on how to determine baseline

conditions.

Response 2. The Services acknowledge that the concept of baseline

determination needs further clarification, and because of its crucial

importance to the overall implementation and success of this policy,

the discussion of this concept is expanded. The Services also further

clarify how baseline conditions should be determined, the intent of the

Services in determining baseline conditions, and the implications of

these determinations. The intent of the Services in determining

baseline conditions is to ensure that the protection provided to

covered listed species is not eroded below current levels. The intent

is to provide participating landowners with a clear understanding of

their assured rights to return enrolled lands to conditions existing

prior to the Agreement (i.e.,

[[Page 32719]]

baseline conditions) and what expectations exist for all participants

in terms of performance under the Agreement.

Issue 3. Numerous commenters raised concerns regarding the

determination of baseline conditions based on the number of individuals

of a listed species occupying or using the enrolled lands. These

concerns are based on the fact that population numbers of a species in

the wild often fluctuate naturally (e.g., between years and between

seasons). If, for example, the baseline was established as the number

of individual animals present during a period of naturally high

abundance, a participating landowner could be interpreted to be in non-

compliance with the Agreement if they returned the enrolled lands to

baseline when population numbers were naturally low, when in fact the

available habitat area remained unchanged and the landowner took no

action that violated the Agreement.

Response 3. The Services intend to provide flexibility during

implementation of the policy by providing that baseline conditions will

be mutually agreed upon by the participating landowner and the

Services, and will be determined by using either population numbers of

listed species or occupied habitat acreage, or both. The known or

expected seasonal or natural variation of population numbers should be

described in the Agreement and will help form the baseline

determination of the enrolled lands. Similarly, if occupied habitat is

used to determine baseline, the quality, acreage, and characteristics

of the habitat sustaining individuals of the covered species within the

enrolled lands will be described and evaluated. The policy has been

amended to address these concerns and to further clarify the section

discussing baseline.

Issue 4. A number of commenters expressed concern regarding the

land, water, and/or natural resource use that the enrolled lands would

be returned to after the Agreement expires. Commenters were concerned

whether such use would be compatible with maintaining the baseline

conditions.

Response 4. Landowners who have complied with the terms of the

Agreements and wish to use their lands in a manner different from their

original use certainly retain the right to do so without any additional

restrictions under the Act as long as the baseline is maintained.

However, if the proposed use of the enrolled lands would result in

incidental take of the species and is inconsistent with maintaining the

baseline conditions, then separate authorization for such take would be

required and is not covered by the Safe Harbor Agreement. In other

words, the same land, water, and/or natural resource use restrictions

that applied to the property prior to the Safe Harbor Agreement would

still apply and the landowner would have to obtain the appropriate

incidental take authorization under the appropriate provisions of the

Act. If the baseline conditions were zero, based on the existence of

unoccupied habitat, and these habitat areas became occupied as a result

of the activities undertaken under the Agreement, no further

authorization would be required. However, the Services would work with

the landowner to relocate the species, if appropriate, before any

habitat modification back to the baseline occurs, or extend the

Agreement if the landowner so desires.

Issue 5. Numerous commenters supported the ``net conservation

benefit'' standard in the policy. Commenters had significantly

different interpretations of the meaning of ``net conservation

benefit,'' however, and many requested further clarification of the

concept.

Response 5. This crucial and fundamental principle of the Safe

Harbor policy caused confusion and a number of different

interpretations. Therefore, this section of the policy has been revised

to clarify the Services' intent and the ``net conservation benefit''

concept. These net conservation benefits may result from reducing

fragmentation and increasing the connectivity of habitats, maintaining

or increasing populations, insuring against catastrophic events,

enhancing and restoring habitats, buffering protected areas, and

creating areas for testing and implementing new conservation

strategies.

Issue 6. Several commenters requested clarification on how the

Agreements can be terminated and what were the rights and

responsibilities of the participating landowner.

Response 6. The length of Safe Harbor Agreements must be of

sufficient duration to reasonably allow enough time to achieve the

expected ``net conservation benefit'' for the listed species covered by

the Safe Harbor Agreement. For example, if restoring suitable habitat

for a species normally takes five years of active management, and the

proposed Agreement is limited to providing suitable habitat for only

three years, it would not be appropriate to enter into this Agreement.

However, since these Agreements are voluntary, the Services recognize

and respect the landowners' right to request early termination of their

Agreements. The final Safe Harbor policy provides a mechanism to allow

landowners to terminate their voluntary Agreements before the

expiration date. The Services expect the number of landowners

requesting early termination to be minimal based on the FWS's

experience with the Partners for Fish and Wildlife Program.

Issue 7. Many commenters expressed concern that the proposed

process for developing Agreements and issuing the necessary permit to

provide the Safe Harbor assurances would be too cumbersome. Some

commenters also suggested the Services should consider a ``blanket,''

``master,'' or ``programmatic'' permitting process to further

streamline the development of Safe Harbor Agreements.

Response 7. The process established in the draft Safe Harbor policy

and implementing regulations was basically intended to address

situations where a single landowner approaches the Services and is

willing to conduct beneficial management actions on behalf of listed

species, but is concerned regarding potential future section 9

limitations that could result from these voluntary actions. The draft

Safe Harbor policy did not explicitly discuss the potential for using

``blanket,'' ``master,'' or ``programmatic'' permits to provide

assurances to landowners interested in managing habitat for listed

species on their property. However, the FWS has used a section

10(a)(1)(B) ``programmatic'' permit very successfully in the last few

years. Clarifying language has been added to the final Safe Harbor

policy and implementing regulations to allow for the possibility of

using ``programmatic'' permits whenever appropriate. For example, the

development of Statewide Safe Harbor programs, where a State agency or

an appropriate entity acts as a permit holder and has the authority to

include individual landowners through the issuance of ``Certificates of

Inclusion'' or ``Participation Certificates,'' provides the perfect

circumstance for the use of ``programmatic'' Safe Harbor Agreements and

associated enhancement of survival permits. In the final policy, the

Services recognize that significant conservation benefits on a

landscape scale can be provided through these ``programmatic'' Safe

Harbor Agreements and associated permits.

Issue 8. Several commenters expressed concern about the effects

actions taken on enrolled lands may

[[Page 32720]]

have on neighboring non-enrolled lands and expressed the need for

clarification.

Response 8. The Services recognize the implications to neighboring

landowners of the successful implementation of management actions on

enrolled lands. Further, the Services recognize and acknowledge that

some landowners may be reluctant to initiate management actions that

may have land, water, and/or natural resource use implications to

neighboring landowners. The implications to neighboring landowners with

non-enrolled lands will be assessed on a case-by-case basis. For

example, when the Services believe that occupation of non-enrolled

neighboring lands is likely, the Services will make every effort to

include the neighboring landowner as a signatory party to the Agreement

and to be included in the Safe Harbor Agreement and associated permit,

thus extending the Safe Harbor assurances. For example, neighboring

landowners of aplomado falcon (Falco femoralis) release sites in Texas

were included in the permit for the Safe Harbor Agreement, in case

that, as a result of the cooperators' actions, falcons inhabit their

lands.

Issue 9. A number of commenters requested further clarification of

the applicability of future section 7 consultations for Federal actions

affecting the enrolled properties.

Response 9. Section 7 would continue to apply to Federal actions

affecting the enrolled properties. However, if a participating

landowner subsequently proposed an activity that required Federal

approval (e.g., CWA section 404 permit) within the enrolled lands and

such activity would not alter the status of the covered listed species

below the original baseline conditions, as long as the activity does

not diminish the baseline conditions, it is not likely that the species

will be jeopardized. The ``no-jeopardy'' conclusion would be reached

because the affected individuals of the species covered by the

Agreement would be the same authorized to be taken under the Safe

Harbor Agreement which the Services would already have found were

``takes'' that would not result in jeopardy under the issued section

10(a)(1)(A) permit. Furthermore, it will be the policy of the Services

to include in the Biological Opinion ``reasonable and prudent

measures'' necessary to minimize the expected incidental take which are

identical to the terms and conditions included in the Safe Harbor

Agreement and associated enhancement of survival permit issued to the

participating landowner. Some commenters expressed concern regarding

proposed Federal actions within the enrolled lands that are not

initiated by the participating landowner (e.g., highway construction

through condemnation of enrolled lands). Under these circumstances,

normal section 7 compliance and procedures would apply and the

necessary alternatives or measures to comply with section 7 may not be

the same as those included in the Safe Harbor Agreement, regardless of

whether take of covered species moves them below baseline.

Issue 10. Many commenters expressed concerns regarding the

confidentiality of the information generated as a result of entering

into these Agreements and the standards that this information will be

subjected to before making decisions. Most commenters requested a

commitment from the Services to keep all information regarding the

development of Safe Harbor Agreements confidential.

Response 10. The Services recognize the landowners' concerns

regarding privacy related to management actions they plan to implement

on their lands and their desires to guard information regarding

occupancy of listed species on their lands. However, the Act and its

implementing regulations require an open and public process whenever

permits are issued. Furthermore, the Services' implementation guidance

and policy are to encourage an open process. Information used to make

determinations for section 10 (a)(1)(A) permit issuance must be

available for public review and comment. The Services are committed to

ensuring an open and public approach to the implementation of this

program.

Issue 11. A number of commenters felt that the draft policy should

address how enrolled lands will be counted toward achieving recovery

and the appropriateness of counting individuals covered under Safe

Harbor Agreements toward recovery goals.

Response 11. Before entering into any Safe Harbor Agreement, the

Services must make a written finding that all covered species would

receive a net conservation benefit from management actions undertaken

pursuant to the Agreement. Net conservation benefits contribute,

directly or indirectly, to the recovery of the covered species, but

this contribution toward recovery may be of varying duration and not

permanent in nature, and the Services will not rely on these benefits

by themselves as the basis to delist any species. Cumulatively,

conservation benefits from Safe Harbor Agreements are likely to

contribute to the recovery of a species over time by providing

incentives to improve habitat or increase population numbers; reduce

the effects of catastrophic events; provide buffers for protected

areas; and establish areas for testing and developing new and

innovative conservation strategies. Nevertheless, it would not be

prudent to base delisting decisions solely on conservation benefits

provided through Safe Harbor Agreements because of the ultimate right

of a participating landowner to return their property to its original

baseline condition.

Issue 12. Many commenters requested clarification and expressed

concerns regarding the appropriateness of including unlisted species in

these Agreements.

Response 12. Concurrently with this policy, the Services are

publishing in the Federal Register of June 17, 1999, the final policy

on Candidate Conservation Agreements with Assurances, which provides

the opportunity to take action on behalf of declining species before

listing becomes necessary. The Services acknowledge that situations may

arise where a property owner may want to conserve numerous species,

both listed and unlisted, on their property, and may want to enter into

both a Safe Harbor and Candidate Conservation Agreement. The Services

are considering methods to streamline and combine these two processes.

Issue 13. Many commenters stated that there was a need for

monitoring standards and that the Services must ensure monitoring of

Agreements.

Response 13. The Services recognize the need to develop and

implement appropriate monitoring programs for the Safe Harbor Agreement

to ensure that the ``net conservation benefits'' are being achieved.

The monitoring of the implementation of the Safe Harbor Agreement will

be part of the process to learn about the effectiveness of various

conservation techniques and to ensure that the status of the species is

not reduced below the original baseline condition. The scale and

complexity of the Agreement may determine what additional monitoring is

needed. However, monitoring standards are more appropriately generated

in implementation guidance, which the Services are committed to

developing in the near future with public review and comment. However,

it is appropriate to include in the Safe Harbor policy certain guiding

principles on the issue of monitoring and to provide general interim

guidelines and the conceptual basis for the development of monitoring

provisions.

Issue 14. Several commenters suggested that tax and financial

incentives should be offered as part of

[[Page 32721]]

the regulatory assurances included in the draft policy.

Response 14. The Services agree that tax incentives or financial

payments would also be effective in furthering voluntary actions by

non-Federal landowners and would help defray the costs of implementing

some of the necessary management activities. However, the Services do

not have the authority to provide tax incentives without an express

authorization from Congress. The Services' Ten Point-Plan for the fair

implementation of the Act included a recommendation to Congress on

these types of incentives as a way to garner additional support for

voluntary management actions to benefit listed species. In addition, in

fiscal year 1999, the FWS will initiate a pilot grant program to help

provide some limited funding to participating landowners for the

implementation of management activities under the auspices of signed

Safe Harbor Agreements.

Issue 15. A few commenters requested further clarification

regarding the need for National Environmental Policy Act (NEPA)

compliance in terms of implementing the Safe Harbor program.

Response 15. The Services agree that NEPA compliance is necessary

for the implementation of the Safe Harbor program. However, the

Services expect that Safe Harbor Agreements/permits will provide

benefits to covered listed species and their habitats and would have

minor or no effects on other environmental values or resources. Because

these permits can result in incidental take of individuals and/or

habitats that would not exist but for these Agreements, and because

current baseline conditions will be maintained under these Agreements,

the Services expect that activities conducted within the Safe Harbor

program would qualify for a categorical exclusion. Regardless of NEPA

public review provisions, the Act's regulations to implement Safe

Harbor Agreements and permits impose specific public review and comment

requirements. For large-scale agreements that may encompass an entire

State or a significant portion of the covered listed species' range,

the Services are committed to preparing the necessary NEPA

documentation.

Issue 16. A number of commenters inquired about the status of the

necessary implementing regulations for the National Marine Fisheries

Service.

Response 16. NMFS expects to amend its section 10(a)(1)(A)

regulations to accommodate Safe Harbor Agreements in the next few

months. Currently, NMFS does not have any approved Safe Harbor

agreements and none are under consideration. However, we welcome

inquiries on possible Agreements which would further the protection of

listed species under NMFS' jurisdiction. The lack of revised

10(a)(1)(A) regulations should not discourage landowners from seeking

an agreement with NMFS.

Issue 17. A number of commenters inquired about the interrelation,

if any, between the Safe Harbor program and other Federal habitat

restoration efforts and programs (e.g., Farm Bill related programs).

Response 17. The Services recognize that it would be beneficial if

other Federal wildlife habitat restoration and/or enhancement programs

also were able to provide Safe Harbor type assurances. Currently, the

Services are exploring streamlined processes to provide Safe Harbor

type assurances to non-Federal participants of these programs, some of

which are implemented by other agencies of the Federal government

(e.g., Farm Bill programs run by the Natural Resources Conservation

Service). The Services are exploring potential possibilities to provide

these Safe Harbor type assurances to the private landowners that

participate in the Federal programs as long as the affirmative

conservation mandates of Federal agencies are met.

Issue 18. Several commenters requested further clarification as to

the duration of the assurances provided under the Safe Harbor program.

Response 18. In general, the assurances provided under the Safe

Harbor program ``run with the land'' as long as the permit is effective

and as long as the participating landowner is implementing the agreed

upon terms of the Agreement and permit. The Services intend that the

assurances will continue even after the ``net conservation benefit''

standard has been achieved, thus encouraging the landowner to maintain

the benefits of the management actions and refrain from returning the

land to baseline conditions at the end of the Agreement. If subsequent

owners of the land are willing to sign a new Agreement, continue

necessary management actions, and maintain the baseline once the net

conservation benefit has been achieved, the assurances will continue. A

permit that ``runs with the land'' provides the participating landowner

(or subsequent landowner) with the option of not immediately returning

his or her property back to its original baseline conditions.

Clarifying language has been included in the final policy.

However, the Services are prepared as a last resort to revoke a

permit implementing a Safe Harbor Agreement where continuation of the

permitted activity would be likely to result in jeopardy to a species

covered by the permit, although the Services would first have to

exercise all possible means to remedy such a situation prior to taking

such a step.

Revisions to the Draft Policy

The following represents a summary of the revisions to the proposed

policy as a result of the consideration of the public comments.

(1) The Services clarified how baseline should be determined and

the implications of these determinations.

(2) The Services clarified the ``net conservation benefit''

language to indicate that the benefits should be reasonably expected to

occur during the Agreement.

(3) The final Safe Harbor policy provides a mechanism to allow

landowners to terminate their voluntary Agreements before the

expiration date.

(4) The final Safe Harbor policy and implementing regulations

establishes specific public review periods.

(5) The Services have clarified in the final policy how Safe Harbor

Agreements are to be treated in determining the recovery of a listed

species covered by such Agreements.

(6) The Services included in the final policy general interim

guidelines regarding monitoring provisions for Safe Harbor Agreements.

(7) The Services clarified how they will address neighboring

property owners to non-Federal property owners who receive Safe Harbor

assurances.

Final Safe Harbor Policy

Part 1. What Is the Purpose of the Policy?

Because many endangered and threatened species occur exclusively,

or to a large extent, upon privately owned property, the involvement of

the private sector in the conservation and recovery of species is

critical to the eventual success of these efforts. Private property

owners are often willing to be partners in the conservation and

recovery of listed fish, wildlife, and plant species and their

habitats. However, they often may be reluctant to undertake proactive

activities that increase the likelihood of use of their properties by

endangered and threatened species due to their fear of future

additional property-use restrictions. Safe Harbor Agreements are a

means of providing incentives to property owners to restore, enhance,

or maintain habitats and/or populations of listed species that result

in a net conservation benefit to these species. Although such

Agreements may not permanently conserve or recover such populations or

their habitats, they

[[Page 32722]]

nevertheless offer important short-term, mid-term, and, in some cases,

long-term net conservation benefits. These net conservation benefits

may result from reducing fragmentation of habitats, increasing the

connectivity of habitats, maintaining or increasing populations,

insuring against catastrophic events, enhancing and restoring habitats,

buffering protected areas, and creating areas for testing and

implementing new conservation strategies.

The purpose of this policy is to ensure consistency in the

development of Safe Harbor Agreements. Safe Harbor Agreements encourage

proactive species' conservation efforts by private and other non-

Federal property owners while providing certainty relative to future

property-use restrictions, even if these efforts attract listed species

onto enrolled properties or increase the numbers or distribution of

listed species already present on their properties. These voluntary

Agreements will be developed between either Service, or the Services

jointly, and private and other non-Federal property owners. The

Services will closely coordinate development of these Agreements with

the appropriate State fish and wildlife or other agencies and any

affected Tribal governments. Collaborative stewardship with State fish

and wildlife agencies is particularly important given the partnerships

that exist between the States and the Services in recovering listed

species. Approved Safe Harbor Agreements will be covered under a new

category of ``enhancement of survival'' permits issued under section

10(a)(1)(A) of the Act.

Safe Harbor Agreements may be initiated by property owners, or the

Services may take the initiative on their own or in concert with other

Federal or State agencies to encourage property owners to voluntarily

enter into Safe Harbor Agreements for a given area, particularly when

many non-Federal parcels of property are involved. The Services will

work with the participating landowner to develop an ``enhancement of

survival'' permit application and the Safe Harbor Agreement. The

Services will assist landowners in identifying actions that the

landowners will voluntarily undertake or forego to provide a net

conservation benefit to the listed species to be covered by the

Agreement.

Development of an ``enhancement of survival'' section 10(a)(1)(A)

permit application and an adequate Safe Harbor Agreement are

intricately linked. All parties to the Agreement will coordinate the

development of the Agreement to ensure that the measures included in

the Agreement and permit are consistent.

The Services recognize that Safe Harbor Agreements are not

appropriate under all circumstances. In particular, where the land or

water is occupied by a listed species and the property owner seeks

immediate ``incidental take'' authorization, application for and

development of a Habitat Conservation Plan (HCP) and issuance of an

incidental take permit under section 10(a)(1)(B) is the appropriate

tool. Also, an Agreement is not appropriate in situations that do not

meet the net conservation benefit standards of this policy. For

example, if the Services can reasonably anticipate that a proposed

Agreement would only redistribute the existing population of a listed

species or attract a species away from a habitat that has provided

long-term protection to a habitat without such protection, the Services

would not enter into an Agreement. Also, if a species is so depleted or

its habitat so degraded that considerable improvement over baseline

conditions is necessary to result in a net conservation benefit, an

Agreement may not be appropriate. For certain aquatic, riverine, and/or

riparian species it may be too difficult to reach a net conservation

benefit since returning to the baseline conditions could have serious

negative effects that would negate or outweigh the benefits achieved

through the Agreement.

Availability of resources will also be a governing factor for the

Services. While the Services expect the interest in Safe Harbor

Agreements and the demand for technical assistance to property owners

to increase, Safe Harbor Agreements are developed by FWS using limited

funds appropriated for recovery activities. Therefore, the Services

will focus on potential Agreements that provide the greatest

contribution to the recovery of multiple listed species. Another factor

will be whether there is sufficient information to develop sound

conservation measures. The Services will work with State, Tribal, and

other interested parties to develop information on species'

conservation requirements that have not been adequately documented in

the scientific literature.

Part 2. What Definitions Apply to This Policy?

The following definitions apply for the purposes of this policy.

``Baseline conditions'' means population estimates and distribution

and/or habitat characteristics and determined area of the enrolled

property that sustain seasonal or permanent use by the covered species

at the time the Safe Harbor Agreement is executed between the Services

and the property owner.

``Covered species'' means a species of fish or wildlife that is the

subject of a Safe Harbor Agreement. Covered species are limited to

species that are Federally listed as endangered or threatened and are

included in the Safe Harbor Agreement and accompanying enhancement of

survival permit.

``Enhancement of survival permit'' means a permit issued under the

authority of section 10(a)(1)(A) of the Act.

``Enrolled property'' means all private or non-Federal property,

waters, or natural resources to which the assurances in a Safe Harbor

Agreement apply and on which incidental taking is authorized under the

enhancement of survival permit.

``Management activities'' are voluntary conservation actions to be

undertaken by a property owner that the Services believe will benefit

the covered species.

``Net conservation benefit'' means the cumulative benefits of the

management activities identified in a Safe Harbor Agreement that

provide for an increase in a species' population and/or the

enhancement, restoration, or maintenance of covered species' suitable

habitat within the enrolled property, taking into account the length of

the Agreement and any off-setting adverse effects attributable to the

incidental taking allowed by the enhancement of survival permit. Net

conservation benefits must be sufficient to contribute, either directly

or indirectly, to the recovery of the covered species.

``Non-Federal property owner'' includes, but is not limited to,

private individuals, organizations, businesses, State, local, and

Tribal governments, and other non-Federal entities who own the enrolled

property. Federal agencies can be involved in the development of Safe

Harbor Agreements, but will not receive the same assurances provided

through these Agreements as non-Federal property owners.

``Safe Harbor Agreement'' means an Agreement signed by the Services

and a property owner and any other cooperator, such as the holder of a

``programmatic'' permit, if appropriate, that (a) sets forth specific

management activities that the private or non-Federal property owner

will voluntarily undertake or forgo that will provide a net

conservation benefit to covered species and (b) provides the property

owner with the Safe Harbor assurances described within the Agreement

and

[[Page 32723]]

authorized in the enhancement of survival permit.

``Safe Harbor Assurances'' are assurances provided by the Services

to a non-Federal property owner in the Agreement and authorized in the

enhancement of survival permit for covered species. These assurances

allow the property owner to alter or modify enrolled property, even if

such alteration or modification results in the incidental take of a

listed species to such an extent that it returned the species back to

the originally agreed upon baseline conditions. Such assurances may

apply to whole parcels or portions of the owner's property as

designated in the Agreement. These assurances depend on the property

owner complying with obligations in the Agreement and in the

enhancement of survival permit.

Part 3. How Is the Cooperation and Coordination With the States and

Tribes Described in the Policy?

Coordination with the appropriate State agencies and any affected

Tribal governments is important to the success of Safe Harbor

Agreements. Coordination allows the special local knowledge of all

affected entities to be considered in the development of the

Agreements. The Services will work closely with State agencies on

matters involving the distribution of materials describing the Safe

Harbor Agreement policies and programs, the determination of acceptable

baseline conditions, and development of appropriate monitoring efforts.

Because of the Services' trust responsibilities, the Services will also

closely coordinate and consult with any affected Tribal government that

has a treaty right to any fish or wildlife resources covered by a Safe

Harbor Agreement.

Part 4. What Is Species Net Conservation Benefit From Safe Harbor

Agreements?

Before entering into any Safe Harbor Agreement, the Services must

make a written finding that all covered species will receive a net

conservation benefit from management actions undertaken pursuant to the

Agreement. The finding must clearly describe the expected net

conservation benefits and how the Services reached that conclusion. Net

conservation benefits must contribute, directly or indirectly, to the

recovery of the covered species. This contribution toward recovery will

vary and may not be permanent. The Services will not rely solely on

these benefits as the basis to delist any species. A Safe Harbor

Agreement does not have to provide permanent conservation for enrolled

property; however, Agreements must be sufficient to provide a net

conservation benefit to all covered listed species, thereby

contributing to the recovery of such species over time.

Conservation benefits from Safe Harbor Agreements include, but are

not limited to, reduction of habitat fragmentation rates; the

maintenance, restoration, or enhancement of habitats; increase in

habitat connectivity; maintenance or increase of population numbers or

distribution; reduction of the effects of catastrophic events;

establishment of buffers for protected areas; and establishment of

areas to test and develop new and innovative conservation strategies.

The Services believe a ``net conservation benefit'' test is necessary

to justify the issuance of an enhancement of survival permit under

section 10(a)(1)(A) of the Act. The contribution to the recovery of

listed species by Safe Harbor Agreements must be evaluated carefully,

since realized benefits from these Agreements will be affected by the

duration of the Agreement, among other things.

Part 5. What Are the Standards and Development of a Safe Harbor

Agreement and Permit Issuance Under Section 10(a)(1)(A) of the Act?

A non-Federal property owner may obtain an enhancement of survival

permit under section 10 (a)(1()A) of the Act to incidentally take a

covered species above the agreed upon baseline conditions of the Safe

Harbor Agreement, if the Agreement satisfies the following

requirements:

The Agreement must--

(1) Specify the species and/or habitats covered, including the

habitat conditions, and identify the enrolled property covered by the

Agreement;

(2) Include a full description of the agreed upon baseline

conditions for each of the covered species within the enrolled

property;

(3) Identify management actions that would be undertaken to

accomplish the expected net conservation benefits to the species, where

and when the benefits would be achieved, and the agreed upon time

frames these management actions will remain in effect to achieve the

anticipated net conservation benefits;

(4) Describe any incidental take associated with the management

actions during the term of the Agreement;

(5) If appropriate, incorporate a notification requirement to

provide the Services or appropriate State agencies with a reasonable

opportunity to rescue individuals of a covered species before any

authorized incidental taking occurs;

(6) Describe what activities would be expected to return the

enrolled property to baseline conditions and the extent of incidental

take that would likely result from such activities;

(7) Satisfy other requirements of section 10 of the Act; and

(8) Identify a schedule for monitoring and the responsible parties

who will monitor maintenance of baseline conditions, implementation of

terms and conditions of the Agreement, and any incidental take as

authorized in the permit.

The Services will consult under section 7 of the Act on proposed

issuance of the enhancement of survival permit.

Part 6. What Are Baseline Conditions?

The Services, the property owner, and any other cooperator(s) must

accurately describe the baseline conditions of the property and species

covered by the Safe Harbor Agreement. The baseline conditions must

reflect the known biological and habitat characteristics that support

existing levels of use of the property by species covered in the

Agreement. However, for circumstances beyond the control of the

property owner (e.g., loss of nest trees due to storm damage), the

parties to the Agreement may revise the baseline conditions to reflect

the new circumstances and may develop a new baseline upon which all

parties agree.

(A) How do you Determine Baseline Conditions? This policy requires

a full description of baseline conditions for any species covered in an

Agreement (see Part 5 above). The Services, or appropriate cooperators,

with the concurrence of the participating property owner, will describe

the baseline conditions for the enrolled property in terms appropriate

for the covered species such as number and location of individual

animals, if determinable, existing habitat areas or characteristics

that support the species covered at the time of the Agreement, and

other appropriate attributes. On-site inspections, maps, aerial

photographs, remote sensing, or other similar means can help determine

baseline conditions. To the extent determinable, the parties to the

Agreement must identify and agree on the degree to which the enrolled

property is inhabited, permanently or seasonally, by the covered

species. When either Service does not directly determine the baseline

conditions, they must review and concur with the determination before

entering into an Agreement, and, if necessary, conduct on-site visits.

Formulation of baseline conditions can incorporate information provided

by the

[[Page 32724]]

property owner and any other appropriate agency or species experts, as

appropriate. For species that are extremely difficult to survey and

quantify, an estimate and an indirect measure (e.g., number of suitable

acres of habitat of the species) is acceptable and should be based on

the best available techniques and information. The Services will

develop the estimate, and hence baseline conditions, following a

protocol agreed upon by all parties to the Agreement. The Services will

use population estimates, where available, to determine the degree of

occupancy of the enrolled lands by covered species. However, in most

cases, the baseline conditions will be described as the amount and

condition of habitat in the enrolled lands and not the number of

individuals of covered species, since the number of individuals could

fluctuate over time. For example, if population numbers did vary

naturally during the term of an Agreement, and the baseline was

described as number of individual animals, the landowner could be found

to be in non-compliance with an Agreement when a return to baseline is

desired simply because of natural population fluctuations and not as a

result of his or her own actions. In cases where no seasonal or

permanent occupation by covered listed species is documented, the

Services will determine baseline conditions to be zero, unless the

participating landowner agrees to a higher baseline.

(B) Are Plants Covered by the Safe Harbor Policy? The Act's

``take'' prohibitions generally do not apply to listed plant species on

private property. Therefore, the incidental take assurances provided in

this policy are legally not necessary for listed plant species.

However, the FWS strongly encourages and often enters into Agreements

with non-Federal property owners to restore and enhance habitats for

listed plants.

In addition, the Services must review the effects of the Safe

Harbor permit on listed plants under section 7 of the Act, even when

those plants are found on private property. In approving an enhancement

of survival permit and entering into a Safe Harbor Agreement, the

Services must confirm under section 7 that the Agreement is not likely

to ``jeopardize the continued existence'' of any listed plants. In the

interest of conserving listed plants and complying with their

responsibilities under section 7, the Services will encourage a

property owner to voluntarily assist the Services in restoring or

enhancing listed plant habitats present within the enrolled property.

(C) What are the Considerations for Future Section 7 and

Assurances? In reviewing a proposed Safe Harbor Agreement under section

7, the Services must determine whether anticipated future property use

changes within the enrolled property and incidental take consistent

with the established baseline conditions will jeopardize listed species

of fish and wildlife or plants, or destroy or adversely modify

designated critical habitat. If a future action on the enrolled

property with a Federal nexus prompts the need for additional section 7

review, and take of the listed species that does not move them below

baseline conditions is likely, the Services will issue a non-jeopardy

biological opinion and incidental take statement that is consistent

with the Safe Harbor Agreement as long as the activity was initiated by

the participating landowner (e.g., the need for a Clean Water Act

section 404 permit). In particular, the Services will provide the

Federal agency with reasonable and prudent measures to minimize

incidental take that require only implementation of the terms and

conditions provided to the participating landowner in the Safe Harbor

Agreement and associated 10(a)(1)(A) permit. This approach is warranted

because the effects of any incidental take consistent with the

established baseline conditions would previously have been considered

during the Services' intra-agency section 7 review of the proposed

Agreement. However, if the future action was not initiated by the

participating landowner's, (e.g., condemnation of lands for a highway

project), the action agency may receive a Biological Opinion with

reasonable and prudent alternatives or measures that are different from

those included in the affected landowner's Safe Harbor Agreement/

permit.

Part 7. What Are Assurances to Property Owners?

A property owner who enters into an Agreement and later wishes to

return enrolled property to the baseline conditions needs to

demonstrate that the agreed upon baseline conditions were maintained

and that activities identified in the Agreement as necessary to achieve

the net conservation benefit were carried out for the duration of the

Agreement. If the property owner carried out the management actions and

complied with the permit and the Agreement conditions, the property

owner would be authorized to use the property in any manner that does

not result in moving the enrolled property to below baseline

conditions. These assurances run with the enrolled lands and are valid

for as long as the participating landowner is complying with the Safe

Harbor Agreement and associated permit. An Agreement may be of a

relatively short duration if the management actions and net

conservation benefits can be achieved within, for example, 10 years.

However, a 10(a)(1)(A) permit may extend beyond the life of an

Agreement since the assurances will run with the land, not just the

length of the Agreement. Because the assurances run with the enrolled

lands for as long as the permit is valid, the participating landowner

has the opportunity to sustain covered species within the enrolled

lands even after the expiration of the Safe Harbor Agreement and defer

take, thus extending the temporal extent of the ``net conservation

benefits'' achieved under the Agreement. When land subject to a Safe

Harbor Agreement is transferred, the new landowners will, at their

option, be able to receive assurances by signing a new Agreement and

receiving a new permit.

The Services are prepared as a last resort to revoke a permit

implementing a Safe Harbor Agreement where continuation of the

permitted activity would be likely to result in jeopardy to a species

covered by the permit. Prior to taking such a step, however, the

Services would first have to exercise all possible means to remedy such

a situation.

Part 8. How Does the Services Manage Occupation by Non-Covered or Newly

Listed Species?

The possibility exists that after an Agreement is signed and an

enhancement of survival permit is issued, a listed species not

addressed in the Agreement may occupy enrolled property. If the

Services conclude that the species is present as a direct result of the

property owner's conservation actions taken under the Agreement, the

Services will:

(1) At the request of the property owner, amend the Agreement to

reflect the changed circumstances and describe the baseline conditions

for the added species, as appropriate; and

(2) Review and revise the permit, as applicable, to address the

presence of additional listed species on enrolled property.

The Services will not extend assurances in the permit to a non-

covered listed species if the species was specifically excluded from

the original Agreement at the participating property owner's request,

or if its presence is a result of activities not directly attributable

to the property owner's management activities. However, if the parties

to the Safe Harbor Agreement

[[Page 32725]]

agree that a listed species that was not in the original Agreement

should be included, then addenda to the Agreement and permit are

necessary. If it is appropriate to add species to the Agreement, the

Services must determine enhancement or maintenance actions that are

specific to the newly covered species, baseline conditions, and a net

conservation benefit to that species.

Any change to a Safe Harbor Agreement or amendment to a section 10

(a)(1)(A) permit to include a non-covered species would be subject to

the same review process (e.g., section 7 and NEPA review) and issuance

criteria (standards) as the original Safe Harbor Agreement and permit.

Part 9. Is Monitoring Required?

The Services will ensure that adequate monitoring is included in

each Safe Harbor Agreement/permit. The Services are committed to

providing as much technical assistance as possible in the development

of acceptable monitoring programs. In addition, the public will have an

opportunity to review the monitoring plan during the public comment

period on the issuance of the permit. Monitoring programs must be

agreed upon before finalization of the Agreements and issuance of the

permits. The monitoring component of these Agreements ensure that the

participating landowner is implementing the provisions of these

Agreements. Additionally, these monitoring programs will provide

valuable program implementation information for the Services to

evaluate the overall program and ensure its continued evolution toward

a more effective and efficient program. Larger scale or complex Safe

Harbor Agreements will require more in depth and thorough monitoring

programs.

Part 10. How Does the Services Comply With National Environmental

Policy Act?

The National Environmental Policy Act of 1969 (NEPA), as amended,

and the regulations of the Council on Environmental Quality (CEQ)

require all Federal agencies to examine the environmental impact of

their actions, to analyze a full range of alternatives, and to use

public participation in the planning and implementation of their

actions. The purpose of the NEPA process is to help Federal agencies

make better decisions and to ensure that those decisions are based on

an understanding of environmental consequences. Federal agencies can

satisfy NEPA requirements by either a Categorical Exclusion,

Environmental Assessment (EA), or Environmental Impact Statement (EIS),

depending on the effects of their proposed action.

The Services will review each Safe Harbor Agreement and associated

permit action for any significant environmental, economic, social,

historical, or cultural impact, or for significant controversy (516

Departmental Manual 2, Appendix 2 for FWS and NOAA's Environmental

Review Procedures and NOAA Administrative Order Series 216-6). If the

Services conclude that a significant impact could occur, the issuance

of a permit would require preparation of an EA or EIS, although the

Services believe that the need for an EIS will be rare. General

guidance on when the Services exclude an action categorically and when

and how to prepare an EA or EIS is found in the FWS's Administrative

Manual (30 AM 3) and NOAA Administrative Order Series 216-6. If a Safe

Harbor Agreement and associated permit are not expected to individually

or cumulatively have a significant impact on the quality of the human

environment or other natural resources, the Agreement/permit may be

categorically excluded. The Services are committed to develop NEPA

documentation for complex or large scale (e.g., statewide) Safe Harbor

Agreement/permits to ensure effective environmental review of such

significant actions.

Part 11. Can Agreements Be Transferred?

If a property owner who is party to a Safe Harbor Agreement

transfers ownership of the enrolled property to a non-Federal entity,

the Services will regard the new owner as having the same rights and

obligations with respect to the enrolled property as the original

property owner, if the new property owner agrees to become a party to

the original Agreement and enhancement of survival permit. Actions

taken by the new participating property owner that result in the

incidental take of species covered by the Agreement would be

authorized, so long as the new property owner complies with the

management actions identified in the Agreement and maintains the

baseline conditions. However, the new property owner would not be

responsible for any provisions of the Agreement and would not receive

any assurances relative to section 9 restrictions, unless the new owner

agrees to become party to the Agreement and permit.

All Safe Harbor Agreements will commit the participating property

owner to notify the Services before any transfer of ownership of any

property subject to the Agreement. This will allow the Services to

contact the new property owner to explain the prior Safe Harbor

Agreement and to determine whether the new property owner agrees to

continue the original Agreement or desires to enter a new Agreement. If

the new property owner agrees to continue an existing Safe Harbor

Agreement, the Services will honor the original baseline conditions for

the enrolled property under consideration.

Part 12. Do Property Owners Retain Their Discretion?

Nothing in this policy prevents a participating property owner from

implementing management actions not described in the Agreement as long

as such actions maintain the original baseline conditions and do not

affect the beneficial actions set forth in the Agreement. The Services

will provide technical advice, to the maximum extent practicable, to

the property owner, when requested. Additionally, a participating

landowner that, for circumstances out of the landowner's control, needs

to terminate the voluntary management actions that he or she agreed

upon under the Safe Harbor Agreement, can terminate the Agreement prior

to its expiration date and return the land to baseline conditions even

if the expected ``net conservation benefits'' have not been realized.

For example, if, due to unanticipated circumstances, the participating

landowner needs to generate income to deal with a family emergency, the

landowner has the option of terminating the Agreement with the Services

to use his or her land, water, and/or natural resources to deal with

the emergency.

Part 13. What Is the Discretion of All Parties?

Nothing in this policy compels any party to enter into a Safe

Harbor Agreement. Entering a Safe Harbor Agreement is purely voluntary

for non-Federal entities and the Services, and presumes that the

Agreement will serve the interests of all affected parties. An

Agreement does not otherwise create or waive any legal rights of any

party to the Agreement.

Part 14. How Do the Services Manage Neighboring Landowners?

The potential effects and/or implications of a Safe Harbor

Agreement on neighboring properties may be an important consideration

in deciding whether to enter into a Safe Harbor Agreement. In some

cases, actions carried out voluntarily by a landowner under a Safe

Harbor Agreement may

[[Page 32726]]

result in listed species occupying adjacent properties.

The Services will use the maximum flexibility allowed under the Act

in addressing neighboring properties under Safe Harbor Agreements and

associated take authorizations, including, but not limited to, granting

of incidental take authority to the owners of neighboring lands, where

occupation of neighboring lands is expected as a result of the

Agreement. Neighboring landowners would only be required to agree to

such conditions as would be necessary to ensure that the Agreement does

not circumvent those obligations or requirements, if any, under section

9 of the Act that were applicable at the time the Agreement was signed.

Implications to neighboring landowners with non-enrolled lands will be

determined on a case-by-case-basis, and the Services will make every

effort to include them as a signatory party to the Agreement and

enhancement of survival permit when the occupation of their lands by

covered species is expected. For neighbors to receive the Safe Harbor

Assurances, they would sign an Agreement with the following

requirements: (1) Allow an assessment/establishment of the baseline on

their properties with concurrence by all parties, (2) notify the

Services prior to significantly modifying the habitat, and (3) allow

the Services access to capture and translocate individuals of the

covered species on their property that would be expected to be

adversely affected by those habitat modifications. To facilitate

neighboring landowner's participation, the Services will encourage them

to become signatory parties to these Agreements, where appropriate.

Part 15. Will There Be Public Review?

The Services will encourage property owners to involve the public

in the development of an Agreement. However, public participation must

be agreed to by the property owner. The Services will make every Safe

Harbor Agreement available for public review and comment as part of the

evaluation process for issuance of the associated enhancement of

survival permit. This comment period will generally be 30 days; with

the comment period for large or programmatic Agreements 60 days.

Part 16. What Is the Scope of the Policy?

This policy applies to all Federally-listed species of fish and

wildlife administered by the Services, as provided in the Act and its

implementing regulations.

Dated: March 22, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

Dated June 10, 1999.

Penelope D. Dalton,

Assistant Administrator of Fisheries, National Marine Fisheries

Service.

[FR Doc. 99-15256 Filed 6-11-99; 5:08 pm]

BILLING CODE 4310-55-P