Announcement of Final Policy for Candidate Conservation Agreements with Assurances

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

Announcement of Final Policy for Candidate Conservation

Agreements with Assurances

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

Service, NOAA, Commerce.

ACTION: Announcement of final policy.

-----------------------------------------------------------------------

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

Fisheries Service (NMFS) (jointly the Services) announce a joint final

Policy for Candidate Conservation Agreements (Agreements) with

Assurances under the Endangered Species Act of 1973, as amended (Act).

This policy offers assurances as an incentive for non-Federal property

owners to implement conservation measures for species that are proposed

for listing under the Act as threatened or endangered, species that are

candidates for listing, and species that are likely to become

candidates or proposed in the near future. Published concurrently in

this Federal Register are the FWS's regulations necessary to implement

this policy.

DATES: This policy is effective July 19, 1999.

ADDRESSES: Chief, Division of Endangered Species, U.S. Fish and

Wildlife Service, 1849 C Street, N.W., Washington, D.C. 20240

(Telephone 703/358-2171, Facsimile 703/358-1735); or Chief, Endangered

Species Division, National Marine Fisheries Service, Office of

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

(Telephone 301/713-1401, Facsimile 301/713-0376).

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

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

358-2171) or Marta Nammack, Endangered Species Division, National

Marine Fisheries Service (Telephone 301/713-1401).

SUPPLEMENTARY INFORMATION:

Background

On June 12, 1997, the Services issued a draft policy (62 FR 32183),

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

32189). This policy is intended to facilitate the conservation of

proposed and candidate species, and species likely to become candidates

in the near future by giving citizens, States, local governments,

Tribes, businesses, organizations, and other non-Federal property

owners incentives to implement conservation measures for declining

species by providing certainty with regard to land, water, or resource

use restrictions that might be imposed should the species later become

listed as threatened or endangered under the Act. Under the policy,

non-Federal property owners, who enter into a Candidate Conservation

Agreement with assurances that commit them to implement voluntary

conservation measures for proposed or candidate species, or species

likely to become candidates or proposed in the near future, will

receive assurances from the Services that additional conservation

measures will not be required and additional land, water, or resource

use restrictions will not be imposed should the species become listed

in the future.

Much of the land containing the nation's existing and potential

fish and wildlife habitat is owned by private citizens, States, local

governments, Native American Tribal governments, businesses,

organizations, and other non-Federal entities. The future of many

declining species is dependent, wholly or in part, on conservation

efforts on these non-Federal lands. Such conservation efforts are most

effective and efficient when initiated early. Early conservation

efforts for proposed and candidate species, and species likely to

become candidates or proposed in the near future can, in some cases,

preclude or remove any need to list these species as threatened or

endangered under the Act.

By precluding or removing any need to list a species through early

conservation efforts, property owners can maintain land use and

development flexibility. In addition, initiating or expanding

conservation efforts before a species and its habitat are critically

imperiled increases the likelihood that simpler, more cost-effective

conservation options will still be available and that conservation will

ultimately be successful.

[[Page 32727]]

Early conservation efforts for declining species can be greatly

expanded through a collaborative stewardship approach. A collaborative

approach fosters cooperation and facilitates the exchange of ideas

among private citizens, Federal agencies, States, local governments,

Tribes, businesses, and organizations by involving all stakeholders in

the conservation planning process.

Candidate Conservation Agreements without assurances have been

effective mechanisms for conserving declining species, particularly

candidate species, and have, in some instances, precluded or removed

any need to list some species. Development of Agreements without

assurances will continue to be a high priority. However, most of these

Agreements have been between the Services and other Federal agencies

since non-Federal property owners have had little incentive to enter

such Agreements. Many non-Federal property owners are willing to manage

their lands to benefit fish, wildlife, and plants, especially those

species that are declining. However, some of these property owners are

reluctant to implement conservation measures for declining species

because of possible future land, water, or resource use restrictions

that may result from the Act's section 9 ``take'' prohibitions if their

conservation efforts cause a species to colonize their lands or

increase in numbers and the species is subsequently listed as

threatened or endangered. This policy is designed to provide these

property owners with the necessary assurances to remove these concerns

and encourage them to implement conservation measures for these

species.

Non-Federal property owners, who through a Candidate Conservation

Agreement with assurances commit to implement conservation measures for

a proposed or candidate species or a species likely to become a

candidate or proposed in the near future, will receive assurances from

the Services that additional conservation measures will not be required

and additional land, water, or resource use restrictions will not be

imposed should the species become listed in the future. These

assurances will be provided in the property owner's Agreement and in an

associated enhancement of survival permit issued under section

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

The Services must determine that the benefits of the conservation

measures implemented by a property owner under a Candidate Conservation

Agreement with assurances, when combined with those benefits that would

be achieved if it is assumed that conservation measures were also to be

implemented on other necessary properties, would preclude or remove any

need to list the covered species. ``Other necessary properties'' are

other properties on which conservation measures would have to be

implemented in order to preclude or remove any need to list the covered

species.

The kinds of conservation measures specified in an Agreement with

assurances will depend on the types, amounts, and conditions of, and

need for, the habitats existing on the property and on other biological

factors. Different kinds of conservation measures may benefit different

life stages or serve to fulfill different life history requirements of

the covered species. The amount of benefit provided by an Agreement

with assurances will depend on many factors, particularly the size of

the area on which conservation measures are implemented and the degree

of conservation benefit possible (e.g., through habitat restoration or

reduction of take). For example, an Agreement with assurances for a

property with a small area of severely degraded habitat could be

designed to achieve greater benefits than one for a property with a

large amount of slightly degraded habitat.

Because Candidate Conservation Agreements with assurances will be

designed with the goal of precluding or removing any need to list the

covered species, these Agreements can have significance in the

Services' listing decisions. However, the determination of whether

these Agreements do in fact preclude or remove any need to list the

covered species will be made on a case-by-case basis in accordance with

the listing criteria and procedures under section 4 of the Act.

Collaborative stewardship with State and Tribal fish and wildlife

agencies is particularly important in the development of Candidate

Conservation Agreements, given the statutory role of these entities

under the Act and their traditional conservation responsibilities and

authorities for resident species. The Services recognize that, under

some circumstances, a State, Tribal, or local agency or other entity

may be able to work more promptly, effectively, and efficiently with

individual property owners toward conservation of declining species.

Under this policy, the Services can enter into an ``umbrella'' or

programmatic Agreement with an appropriate State, Tribal, or local

agency or other entity. Such an Agreement and its associated

enhancement of survival permit would specify the assurances and take

allowances that could be distributed by the participating State,

Tribal, or local agency or other entity to individual property owners

who choose to participate under the umbrella Agreement. Appropriate

agencies for such programmatic Agreements include State or Tribal fish

and wildlife agencies and State, Tribal, or local land management

agencies. The State, Tribal, or local agency or other entity would be

the permittee and would issue Certificates of Inclusion (also called

Participation Certificates) to private property owners who satisfy the

terms and conditions of the State, Tribal, or local agency's or other

entity's programmatic Agreement and its associated ``enhancement of

survival'' permit.

The Services have a long history of developing Candidate

Conservation Agreements with Federal agencies, and these efforts will

continue to be a high priority. However, because subsections 7(a)(1)

and (a)(2) of the Act obligate Federal agencies to affirmatively

conserve listed species, an obligation not imposed upon non-Federal

property owners, the Services will not provide assurances to other

Federal agencies through these Agreements.

In 1994, the FWS prepared Draft Candidate Species Guidance, which

underwent public review and comment (59 FR 65780, December 21, 1994).

However, it did not address the development of Candidate Conservation

Agreements with assurances for non-Federal property owners. This final

policy will be incorporated into the FWS's final guidance on candidate

species conservation.

A final rule of the FWS's regulations necessary to implement this

policy is published concurrently in this issue of the Federal Register.

That final rule also includes the FWS's regulations necessary to

implement the Safe Harbor policy (also published concurrently in this

issue of the Federal Register). The NMFS will publish proposed

regulations to implement these policies at a later time.

Summary of Comments Received

The Services received more than 280 letters of comment on the draft

policy from Federal and State agencies, businesses and corporations,

conservation groups, religious organizations, trade associations,

private organizations, and individuals. The Services considered all of

the information and recommendations received from all interested

parties and made changes to the draft policy where appropriate. A few

commenters raised issues related to the FWS's draft implementing

regulations, and the FWS

[[Page 32728]]

has addressed these issues where appropriate in its final implementing

regulations also published in today's Federal Register. The following

is a summary of the comments on the draft policy and the Services'

responses.

Issue 1. Many commenters stated that the policy is inconsistent

with provisions of section 7(a)(1) of the Act that requires all Federal

agencies to use their authorities to conserve endangered and threatened

species.

Response 1. The Services believe that the policy is consistent with

provisions of section 7(a)(1) of the Act and enables the Services to

further satisfy the intent of this section of the Act. Entering into an

Agreement with assurances is completely voluntary for the Services, as

it is for property owners. The Services will enter into an Agreement

with assurances only if we have determined that the conservation needs

for covered species on the participating property owner's property are

adequately addressed in the Agreement.

By entering into a Candidate Conservation Agreement with

assurances, a property owner can obtain certainty that no additional

conservation measures will be required and no additional land, water,

and resource use restrictions will be imposed if the species is listed

in the future. If they cannot obtain such certainty, some property

owners might choose to eliminate or reduce the species' habitat before

listing occurs. An Agreement with assurances thus can further the

conservation of the covered species because it can prevent such losses

of existing habitat.

Issue 2. Many commenters believed that the policy is inconsistent

with provisions of section 7(a)(2) of the Act because it precludes

reinitiation of section 7 consultation on issuance of an enhancement of

survival permit. Also, many commenters believed that the Services

cannot guarantee that funding will be available to pay for additional

conservation measures needed to address unanticipated changes in

circumstances.

Response 2. The Services believe that the policy is consistent with

section 7(a)(2) of the Act. As applied to implementation of this

policy, section 7(a)(2) requires the Services to conduct a formal

intra-Service consultation on the issuance of an enhancement of

survival permit. The purpose of any consultation is to ensure that any

action authorized, funded, or carried out by a Federal agency,

including the issuance of an enhancement of survival permit by the

Services, is not likely to jeopardize the continued existence of any

listed or proposed species or result in the destruction or adverse

modification of designated or proposed critical habitat of such

species. Since the standard for Candidate Conservation Agreements with

assurances is the preclusion or removal of the need to list, the

Services believe that it is highly unlikely that the conservation

measures prescribed in an Agreement or any incidental take authorized

by the associated enhancement of survival permit would later be

discovered to adversely affect the covered species or any listed

species causing a need to reinitiate intra-Service consultation.

If unanticipated changes in circumstances occur that might warrant

modifications to the agreed upon conservation measures, the Services

would work with the property owner to seek mutually agreed upon

adjustments to those conservation measures that enhance their

effectiveness for the covered species. Thus, the Services and property

owners could agree to substitute the original agreed upon conservation

measures for new ones that would be no more costly but more effective

in addressing the changed circumstances. In this fashion, the

conservation goal for that property owner's property could still be

maintained.

The Services will not enter into an Agreement unless (1) the

threats to and the requirements of the covered species are adequately

understood so that the Services can determine that the agreed upon

conservation measures will be beneficial to the covered species; and

the effects of the agreed upon conservation measures are adequately

understood so that the Services can determine that they will not

adversely affect listed species or adversely modify critical habitat or

(2) any information gaps relating to the requirements of the covered

species or the effects of the conservation measures on the covered

species or listed species can be adequately addressed by incorporating

adaptive management principles into the Agreement. The Services believe

that, in many Agreements, the conservation measures prescribed for the

covered species will also benefit other species, including listed ones.

Moreover, the Services have significant resources and conservation

authorities that can be used to address the needs of species covered by

Agreements with assurances when unanticipated changes in circumstances

cause a need for additional conservation measures. Some funding for

additional conservation measures may come from existing appropriations

for either candidate conservation or recovery, depending on whether the

species is listed. When necessary, the Services will work with other

Federal, State, and local agencies, Tribal governments, conservation

groups, and private entities to implement additional conservation

measures for the species.

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

permit implementing a Candidate Conservation Agreement with assurances

where continuation of the permitted activity would be likely to result

in jeopardy to a species covered by the permit. Prior to taking such a

step, however, the Services would first have to exercise all possible

means to remedy such a situation.

Issue 3. Many commenters believed that the policy precludes

adaptive management.

Response 3. The Services encourage the inclusion of the principles

of adaptive management into Candidate Conservation Agreements with

assurances and associated enhancement of survival permits when

necessary, especially when new management techniques are being tested.

Adaptive management is a process of monitoring the implementation of

conservation measures, then adjusting future conservation measures

according to what was learned. Adaptive management can also include

testing of alternative conservation measures, monitoring the results,

and then choosing the most effective and efficient measures for long-

term implementation. Inclusion of adaptive management in Agreements

allows for up-front, mutually agreed upon changes to conservation

measures in response to changing conditions or new information.

By incorporating adaptive management into Agreements with

assurances and associated enhancement of survival permits, the Services

believe that these Agreements will have sufficient flexibility to

enable the Services and property owners to address reasonably

foreseeable changes in circumstances or new information.

Issue 4. Many commenters stated that Candidate Conservation

Agreements with assurances will undermine recovery of the covered

species once it is listed.

Response 4. The Services believe that this comment reflects

confusion regarding the standard required by the policy in all

Agreements with assurances. The policy requires the Services to

determine that the benefits of the conservation measures implemented by

a property owner under a Candidate Conservation Agreement with

assurances, when combined with those benefits that would be achieved if

[[Page 32729]]

it is assumed that conservation measures were also to be implemented on

other necessary properties, would preclude or remove any need to list

the covered species. Since this is essentially a recovery standard,

each property owner with an Agreement with assurances would contribute

to precluding or removing any need to list the covered species.

Therefore, if the covered species became listed, these property owners

would already be implementing conservation measures that address the

covered species' conservation needs on their properties.

Issue 5. Many commenters believed that the draft policy limited

public participation. Some stated that the draft policy was unclear as

to when the Services will solicit comments on Candidate Conservation

Agreements with assurances, and some commenters felt that the public

should be allowed to participate in the development of all Agreements.

In addition, many commenters said that Agreements should be subject to

citizen enforcement.

Response 5. The Services have changed the policy to clarify when

the public will have the opportunity to review and comment on

Agreements with assurances. The Services will make every Agreement with

assurances available for public review and comment as part of the

evaluation process for issuance of the enhancement of survival permit

associated with these Agreements. This comment period will generally be

30 days; the comment period for large-scale or programmatic Agreements

that may affect other natural resources will be at least 60 days.

The development of an Agreement with assurances consists primarily

of the preparation of a proposal by a non-Federal property owner to

modify voluntarily their current land management practices so as to

restore, enhance, or preserve habitat or to implement voluntarily other

conservation measures for declining species. Because development of

such a proposal is purely voluntary and involves private land use

decisions, public participation in the development of an Agreement with

assurances will only be provided when agreed to by the property owner.

However, the Services will encourage property owners to allow for

public participation during the development of an Agreement with

assurances, particularly if non-Federal public agencies (e.g., State

fish and wildlife agencies) are involved. The Services also will

encourage State or local agencies or other entities developing

``umbrella'' or programmatic Agreements, which would specify the

assurances and take allowances that could be further delegated by the

State or local agency or other entity to individual participating non-

Federal property owners, to provide extensive opportunities for public

involvement during the development process.

The public will also be given other opportunities to comment on

Agreements in cases that are related to a listing determination. When

one or more additional Agreements are completed after the covered

species is proposed for listing, and the Services determine, based upon

a preliminary evaluation, that all completed Agreements could

potentially justify withdrawal of the proposed listing, the comment

period for the proposed listing will be extended or reopened to allow

for public comments on the Agreements' adequacy in removing threats to

the species. The Services believe a preliminary evaluation of the

likelihood that the completed Agreements remove the need to list is

necessary in order to justify constricting the available time to reach

a final determination by extending or reopening the comment period on a

proposed rule.

The provisions of the Act providing for citizen suits will be

neither enhanced nor diminished in any way by the issuance of this

policy because it will be implemented through the enhancement of

survival permitting process recognized under the Act. To the extent

that the current Act allows for citizen lawsuits to challenge the

issuance of a given section 10(a) permit, nothing in this policy would

modify or alter that opportunity for possible judicial review.

Issue 6. Many commenters stated that all Candidate Conservation

Agreements with assurances should undergo independent scientific

review.

Response 6. In determining the need for independent scientific

review, the Services will consider the complexity of the Agreement, the

size of the geographic area covered, the number of species covered, the

presence of data gaps or scientific uncertainties, and other factors.

Scientific experts will often be asked to assist with development of

conservation measures and/or to review a draft Agreement. When

scientific experts are not specifically solicited to provide comments,

such individuals can submit comments during the general public review

and comment periods (see Response 5 above). In developing Agreements

with assurances, the Services may use existing State conservation plans

or strategies that have undergone scientific review, or the Services

may use other scientific information published in peer reviewed

journals.

Issue 7. Many commenters questioned the authority for and the

availability of adequate funding for the implementation of this policy.

Response 7. The Services believe that sections 2, 7, and 10 of the

Act allow the implementation of this policy. For example, section 2

states that ``encouraging the States and other interested parties

through Federal financial assistance and a system of incentives, to

develop and maintain conservation programs * * * is a key * * * to

better safeguarding, for the benefit of all citizens, the Nation's

heritage in fish, wildlife, and plants.'' The Services believe that

establishing a program for the development of Candidate Conservation

Agreements with assurances provides an excellent incentive to encourage

conservation of the Nation's fish and wildlife. Section 7 requires the

Services to review programs they administer and to ``utilize such

programs in furtherance of the purposes of this Act.'' The Services

believe that, in establishing this policy, they are utilizing their

Candidate Conservation Programs to further the conservation of the

Nation's fish and wildlife. Of particular relevance is section 10(a)(1)

which authorizes the issuance of permits to ``enhance the survival'' of

a listed species. From the perspective of the Services, a well designed

voluntary Candidate Conservation Agreement is the epitome of

conservation efforts designed to ``enhance the survival'' of the

covered species.

Funding is available to implement this policy through annual

appropriations. The Services are currently working on Candidate

Conservation Agreements without assurances, and with finalization of

this policy the Services will use available resources to develop

Agreements with assurances as well. The FWS is currently implementing

over 40 conservation agreements (without assurances) and actions

benefitting over 200 species. Several of these conservation agreements

and actions have successfully precluded or removed threats so that

listing by the Services was avoided.

The Services will prioritize the development of Agreements with

assurances because resources to develop Agreements are limited.

Prioritization will help the Services focus on those Agreements that

are expected to provide the greatest conservation benefits.

Issue 8. Many commenters stated that the policy should require that

all

[[Page 32730]]

Candidate Conservation Agreements with assurances include monitoring

provisions.

Response 8. The Services agree that monitoring is necessary to

ensure that the conservation measures specified in an Agreement with

assurances are being implemented and to learn about the effectiveness

of the agreed upon conservation measures. In particular, when adaptive

management principles are included in an Agreement, monitoring is

especially helpful for obtaining the information needed to measure the

effectiveness of the conservation program and detect changes in

conditions. For these reasons, monitoring will be a component of most

Agreements with assurances. For many of these Agreements, monitoring

can be conducted by the Services or the State and, in many cases, may

involve only a brief site inspection and appropriate documentation.

Issue 9. Many commenters believed that Candidate Conservation

Agreements with assurances will wrongly be used to replace recovery

plans or warranted listing determinations or to delay the listing

process.

Response 9. The Services do not intend for Agreements with

assurances to replace recovery plans. In fact, in order to facilitate

the development of Agreements with individual property owners, the

Services may develop a conservation outline, strategy, or plan to

determine the measures needed to address the conservation needs of the

covered species. If the covered species is later listed, the

conservation strategy or plan may form the basis for part or all of a

recovery plan.

The Services also do not intend to use Agreements with assurances

to justify a determination not to list the covered species when listing

is in fact warranted. As described in Response 5, when an Agreement

with assurances is completed after the covered species is proposed for

listing, and when the Services determine, based upon a preliminary

evaluation, that the Agreement could potentially justify withdrawal of

the proposed rule, the comment period for the proposed rule will be

extended or reopened to allow for public comments on the Agreement's

adequacy in removing threats to the species.

However, the Act requires the Services to issue a final

determination within 1 year of issuing a proposed rule to list. The FWS

is working diligently to remove the backlog of listing actions that

accrued following the listing moratorium in 1995 and 1996, and the FWS

expects to soon be able to again make final listing determinations

within the 1-year time frame. The Services will not extend this time

frame in order to allow for the completion and/or consideration of an

Agreement with assurances. The Services believe a preliminary

evaluation of an Agreement is necessary in order to justify

constricting the available time to reach a final determination by

extending or reopening the comment period on a proposed rule.

Issue 10. Several commenters stated that the policy should require

incorporation of avoidance and minimization of take in all Candidate

Conservation Agreements with assurances.

Response 10. The Services believe that avoidance and minimization

of take is an inherent consideration in the development of any

Agreement with assurances. Property owners whose current land, water,

or resource use results in take of proposed or candidate species, or

species likely to become candidates or proposed in the near future, are

a primary focus of this policy. For some Agreements, avoidance and/or

minimization of take may be the primary objective. A property owner

entering into an Agreement with assurances can be assured that, if the

covered species is listed in the future, no additional land, water, or

resource use restrictions will be imposed above and beyond the

conservation measures set forth in the Agreement. After take is

eliminated or reduced, land, water, or resource uses can often provide

significant benefits to the covered species. For example, a property

owner could eliminate or reduce take of a declining grassland bird

species that nests on his property by agreeing to delay mowing until

after the nesting season. The species would benefit from successful

reproduction, and the property owner would benefit from being able to

maintain his current land use even if the species is later listed.

If a property owner exceeds the conservation goal established for

his property as specified in an Agreement with assurances, the property

owner may choose to reduce the level of conservation benefits he/she

has provided to the covered species to a lower level, but one that is

still at or above the conservation goal specified in the Agreement. The

property owner's enhancement of survival permit would authorize

incidental take associated with this reduction of conservation benefits

back to the agreed upon level. Prior to issuing the enhancement of

survival permit, the Services must determine that the conservation goal

for the property can be maintained with the level of take authorized by

the permit. The policy also requires that the Agreement include a

notification requirement, if appropriate, to provide the Services or

State agencies with a reasonable opportunity to rescue and translocate

individuals of a covered species before any authorized take occurs. The

Services believe that these provisions will ensure that any authorized

take will not prevent a property owner from achieving the conservation

goal established for his property and will minimize the amount of

authorized take that occurs.

Issue 11. Several commenters believed that the policy should list

the minimum conditions that must be satisfied before any Candidate

Conservation Agreements with assurances are pursued.

Response 11. The Services agree with this comment, and the final

policy lists the general requirements that all Agreements with

assurances and associated enhancement of survival permits should

satisfy. In addition, FWS's implementing regulations, which are

published in today's Federal Register, also list the requirements that

must be met before the Services will issue an enhancement of survival

permit.

In addition, the FWS's draft Candidate Conservation Handbook

includes a list of conditions under which Candidate Conservation

Agreements would most likely be successful in eliminating threats and

precluding or removing any need to list the covered species. This list

would also apply to Agreements with assurances. The Services believe

that such a list is more appropriately included in implementation

guidance such as the FWS's Candidate Conservation Handbook.

Issue 12. Several commenters stated that the policy should not

apply to candidate and proposed species because determinations have

already been made that these species should be listed, and efforts to

develop Candidate Conservation Agreements with assurances would only

delay or forego the necessary protection that could be afforded by

listing.

Response 12. The Services do not believe that Agreements with

assurances will delay or forego any actions necessary to achieve

conservation of the covered species. In fact, these Agreements will

help to garner the necessary support from non-Federal property owners

in achieving conservation through voluntary implementation of

conservation measures. Additionally, the Services

[[Page 32731]]

believe that, for some candidate and proposed species, it is possible

to complete the Agreements with assurances necessary to remove the need

to list before a final listing determination could be made. These

candidate and proposed species may include (1) species for which

relatively few, non-complex Agreements are necessary, (2) species for

which development of Agreements begins prior to the species becoming a

candidate or proposed species, and (3) candidate species that have a

low listing priority. Therefore, the Services believe that including

candidate and proposed species in this policy is appropriate. However,

for the Services to justify withdrawal of a proposed rule to list, the

parties to all Agreements with assurances for the covered species must

have the authority, funding, and commitment to implement the

Agreements.

As of April 30, 1999, there were 154 FWS candidate species awaiting

preparation of proposed rules and 69 FWS proposed species awaiting

preparation of final rules. Final listing of many of these species, as

well as many of the species that will be added as candidates or

proposed species in the future, will require considerable time. The FWS

believes that initiating early conservation efforts, including the

development of Agreements with assurances, for some of these species

will significantly increase the likelihood that conservation will be

successful.

Issue 13. Several commenters asked how the conservation goal for

each property owner's property can be determined without preparing a

recovery plan.

Response 13. The Services believe it may be appropriate in some

cases to prepare a conservation outline, strategy, or plan for a

species before an Agreement with assurances is developed. In some

cases, a conservation strategy or plan may already have been developed

by the Services, another Federal agency, and/or a State agency. These

strategies or plans may already have identified measures that should be

implemented to conserve the covered species. In these cases,

development of Agreements with assurances can be initiated right away.

Issue 14. Some commenters argued that a property owner could

destroy habitat for candidate or proposed species, and then request a

Candidate Conservation Agreement with assurances based on a lower

starting baseline. Also, some commenters suggested that property owners

may threaten to destroy habitat unless Agreements are written their

way.

Response 14. The Services will not enter into any Agreement with

assurances that does not meet the minimum standards established by this

policy and its implementing regulations. Entering into an Agreement

with assurances is voluntary for the Services and property owners; the

Services will refuse to enter into an Agreement that does not meet the

minimum established standards. Also, because the conservation goal for

a property owner's property is not based solely on the amount of

currently suitable habitat present, destroying habitat will likely only

make it more difficult for the property owner to achieve the

conservation goal for his property. Removing threats and taking actions

consistent with the goal of precluding or removing any need to list

would only be made more arduous by an initial destruction of habitat.

Finally, the Services do not believe that it is credible to suggest

that a property owner who is otherwise interested enough in declining

species conservation to consider entering into an Agreement is likely

to go in and first destroy portions of the species' habitat before

entering into an Agreement.

Issue 15. Some commenters stated that the standard for Candidate

Conservation Agreements with assurances should be to increase the

likelihood that the species will survive rather than to preclude or

remove any need to list.

Response 15. The Services believe that the overall goal for

Agreements with assurances developed under this policy should be to

remove threats to the covered species so as to preclude or remove any

need to list the species. The Services believe that the policy must

incorporate this standard in order to justify the expenditure of

resources to develop and evaluate Agreements with assurances, process

associated enhancement of survival permits, and allow the Services to

provide assurances to the property owner.

Issue 16. Some commenters stated that the Services must conduct

National Environmental Policy Act (NEPA) analyses for all Candidate

Conservation Agreements with assurances and enhancement of survival

permits.

Response 16. The Services believe that implementation of this

policy must comply with NEPA. The Services have determined that most of

these Agreements will be categorically excluded under the Department of

Interior Departmental Manual (DM) NEPA procedures in 516 DM 2, Appendix

1.10 and under NOAA Administrative Series 216-6, Sections 602b.3 and

602c.3. The Services expect that most Agreements with assurances and

associated enhancement of survival permits will result in minor or

negligible effects on the environment including federally listed

species and their habitats. Complex, large-scale, or programmatic

Agreements and their associated permits will require individual NEPA

analysis.

Issue 17. Many commenters were confused by the term ``umbrella

agreements'' in the draft policy.

Response 17. The Services may enter into an ``umbrella'' or

programmatic Agreement with an appropriate State or local agency or

other entity, and through such an Agreement and associated enhancement

of survival permit, specify the assurances and take allowances that

could be further delegated by the State or local agency or other entity

to individual participating non-Federal property owners. In such a

case, the State or local agency or other entity would be the permittee

and would issue Certificates of Inclusion (also sometimes called

Participation Certificates) to non-Federal property owners who satisfy

the terms and conditions of the State or local agency's or other

entity's ``umbrella'' or programmatic Agreement and associated permit.

To avoid confusion in this final policy, the term ``Agreements with

non-Federal property owners'' is used to refer to Agreements between

the Services and individual property owners as well as ``umbrella'' or

programmatic Agreements with State or local agencies or other entities

through which assurances are further delegated to individual

participating non-Federal property owners.

Issue 18. The statement ``These assurances will only be provided to

the participating property owners or State or local land management

agencies but not to State regulatory agencies'' confused many

commenters who recognized that many State or local land management

agencies also have regulatory responsibilities.

Response 18. The Services agree that this statement was confusing

and have clarified it in the final policy. In making the statement, the

Services overlooked the dual role of many State and local land

management agencies. The Services intended to emphasize that only non-

Federal property owners, whether they are State or local agencies,

private individuals, Tribes, or other non-Federal entities, can receive

assurances. However, as discussed previously, the Services can enter

into an ``umbrella'' or programmatic Agreement with a State or local

agency, including a State or local regulatory agency if appropriate, or

other entity, and through such an Agreement and its

[[Page 32732]]

associated enhancement of survival permit, specify the assurances and

take allowances that can be delegated by the State or local agency or

other entity to individual participating non-Federal property owners

through Certificates of Inclusion, Participation Certificates, or other

similar vehicles.

Issue 19. Many commenters questioned the meaning of, or were

confused by, the phrase ``similarly situated property owners,'' which

was used in describing the standard to which every Candidate

Conservation Agreement with assurances will be held. Some commenters

asked what the standard would be if there are no other similarly

situated property owners within the range of the species. Some

commenters asked what non-similarly situated property owners would be

required to do. In addition, some commenters asked what property owners

outside the current range of the species would be required to do if

expansion of the current range of the species is necessary to preclude

or remove any need to list.

Response 19. The Services agree that the draft policy did not

clearly explain the standard that all Agreements with assurances must

meet and have revised the description of the standard in the final

policy as follows:

``The Services must determine that the benefits of the conservation

measures implemented by a property owner under a Candidate Conservation

Agreement with assurances, when combined with those benefits that would

be achieved if it is assumed that conservation measures were also to be

implemented on other necessary properties, would preclude or remove any

need to list the covered species. Other necessary properties are other

properties on which conservation measures would have to be implemented

in order to preclude or remove any need to list the covered species.

The kinds of conservation measures specified in an Agreement with

assurances will depend on the types, amounts, and conditions of, and

need for, the habitats existing on the property and on other biological

factors. Different kinds of conservation measures may benefit different

life stages or serve to fulfill different life history requirements of

the covered species. The amount of benefit provided by an Agreement

with assurances will depend on many factors, particularly the size of

the area on which conservation measures are implemented and the degree

of conservation benefit possible (e.g., through habitat restoration or

reduction of take). For example, an Agreement with assurances for a

property with a small area of severely degraded habitat could be

designed to achieve greater benefits than one for a property with a

large amount of slightly degraded habitat.''

The Services believe this description of the standard more clearly

explains the contribution an individual property owner entering into an

Agreement with assurances would need to make toward precluding or

removing any need to list the covered species. This description

addresses the fact that properties differ and that, consequently,

different conservation measures could be specified for different

properties. In addition, this description takes into account the fact

that the Services may need to expand the species' current range in

order to preclude or remove any need to list.

Issue 20. Several commenters asked for clarification of the phrase

``species which will likely become candidates in the near future.''

Response 20. The objective of this policy is to provide incentives

to encourage non-Federal property owners to implement early

conservation for declining species with the goal of precluding or

removing any need to list. The Services did not want to exclude those

species that are declining and/or are becoming subject to increasing

threats and may soon be considered for candidate status. Including

these species is particularly important considering that the rates of

decline can sometimes increase abruptly, that the development of a

Candidate Conservation Agreement with assurances might take longer than

expected, and that conservation options may be more numerous the

earlier a species is addressed. Because the circumstances surrounding

each species are unique, the Services have chosen not to adopt a strict

regulatory definition of the term ``species that will likely become

candidates in the near future.'' Instead, the Services will review

species that are not candidates or proposed species on a case-by-case

basis when determining whether they may be covered by an Agreement with

assurances.

Issue 21. Several commenters were confused by the phrase ``above

those levels agreed upon and specified in the Agreement,'' which was

used in describing the assurances provided through Candidate

Conservation Agreements with assurances and associated enhancement of

survival permits.

Response 21. The Services agree that this phrase is confusing and

have clarified the meaning in the final policy. The draft policy stated

that ``* * * take authorization would be provided to allow the property

owner or State or local land management agency to implement management

activities that may result in take of individuals or modification of

habitat above those levels agreed upon and described in the

Agreement.'' The Services did not intend this statement to mean that

the amount of take authorized by an enhancement of survival permit

could exceed the amount specified in the associated Agreement or could

allow for more habitat modification than specified in the Agreement.

Rather, the statement was an attempt to explain that the enhancement of

survival permit accompanying an Agreement with assurances would

authorize a property owner who exceeds the conservation goal specified

in the Agreement (e.g., through additional habitat improvement or the

implementation of conservation measures that are more effective or

beneficial than anticipated and described in the Agreement) to take the

additional or enhanced number of individuals of the species that is

consistent with the conservation goal specified in the Agreement. That

is, a property owner can still avoid the imposition of additional

restrictions above those agreed to in the Agreement where the property

owner surpassed the conservation goals established under the Agreement.

Issue 22. Some commenters were confused by Part 3A of the draft

policy that stated that a Candidate Conservation Agreement with

assurances will identify habitat characteristics that support use by

the covered species on lands or waters under the property owner's

control or that support populations of the covered species in waters

that may not be under the property owner's control. These commenters

questioned the meaning of the phrase ``waters that may not be under the

property owner's control.''

Response 22. In using this phrase, the Services intended to address

the fact that, in some cases, characteristics of a particular property

owner's property may sustain (or land, water, or resource uses on that

property may affect) individuals of a species located on other lands or

waters adjacent to or some distance away from the property owner's

property. For example, riparian habitat enhancement measures upstream

may benefit candidate species that are downstream from the

participating property owner's property. An Agreement with assurances

can describe this relationship and can include conservation measures to

improve the characteristics of the property that help sustain (or to

reduce

[[Page 32733]]

the impacts of the land, water, or resource uses that may affect) the

individuals of the species found off the property owner's property.

Issue 23. Several commenters asked if there was any difference

between the meanings of the terms ``conservation actions,''

``management actions,'' ``conservation activities,'' ``management

activities,'' and ``conservation management activities.''

Response 23. The Services did not intend for these terms to have

different meanings and, in the final policy, have used a single term,

``conservation measures,'' in place of the terms listed above. The term

``conservation measures'' clearly describes the range of practices

which could be included in a Candidate Conservation Agreement with

assurances. Not all conservation measures involve ``management'' that

is continued into the future; conservation measures may include removal

of a hazard to the species, construction of a habitat feature (such as

placement of boulders in a stream to create fish resting habitat), or

other practices.

Issue 24. Several commenters were confused by the sentence in the

``Definitions'' section of the draft policy under ``Covered species''

that read ``Those species covered in the Agreement must be treated as

if they were listed.''

Response 24. The Services agree that this sentence may have caused

some confusion and the sentence has been deleted from the final policy.

The Services have also clarified the definition in the final policy.

Issue 25. Some commenters questioned why the Services used the term

``incidental take'' to describe take authorized by an enhancement of

survival permit under section 10(a)(1)(A) of the Act when ``incidental

take'' normally applies to take authorized by an Incidental Take permit

under section 10(a)(1)(B).

Response 25. The Services have decided to use the term ``incidental

take'' to refer to the take authorized by an enhancement of survival

permit associated with a Candidate Conservation Agreement with

assurances because this ``take'' is incidental to enhancing the

survival of the species through compliance with the Agreement.

Similarly, take resulting from research authorized by an enhancement of

survival permit under section 10(a)(1)(A) is ``incidental take'' in

that it is typically a consequence of and not the purpose of the

research. The Services believe using the term ``incidental take'' in

this policy will be less confusing than coining a new term to

differentiate take authorized under section 10(a)(1)(A) from that

authorized under section 10(a)(1)(B).

Issue 26. Some commenters questioned the use of the term ``net

benefit'' in the draft policy.

Response 26. The term ``net benefit'' was erroneously included in

the draft policy and has been eliminated in the final policy. ``Net

benefit'' is a concept more appropriately used in ``Safe Harbor''

Agreements for listed species conservation.

Revisions to the Proposed Policy

The following represents a summary of the revisions made to the

proposed Candidate Conservation Agreements with Assurances policy

following consideration of public comments.

(1) The final policy describes the mechanism for property owners to

terminate their voluntary Candidate Conservation Agreements with

assurances before the expiration date.

(2) Specific public review periods for proposed Candidate

Conservation Agreements with assurances and their associated proposed

enhancement of survival permits have been established in the final

policy and implementing regulations.

(3) The final policy includes general guidelines for the

development of monitoring provisions of Candidate Conservation

Agreements with assurances.

(4) Several definitions and terms have been clarified in the final

policy.

Final Candidate Conservation Agreements With Assurances Policy

Part 1. What Is the Purpose of the Policy?

This policy, is intended to facilitate the conservation of proposed

and candidate species, and species likely to become candidates or

proposed in the near future, by giving non-Federal citizens, States,

local governments, Tribes, businesses, organizations, and other non-

Federal property owners incentives to implement conservation measures

for declining species by providing regulatory certainty with regard to

land, water, or resource use restrictions that might otherwise apply

should the species later become listed as threatened or endangered

under the Act. Under the policy, non-Federal property owners who commit

in a Candidate Conservation Agreement with assurances to implement

mutually agreed upon conservation measures for a proposed or candidate

species, or a species likely to become a candidate or proposed in the

near future, will receive assurances from the Services that additional

conservation measures above and beyond those contained in the Agreement

will not be required, and that additional land, water, or resource use

restrictions will not be imposed upon them should the species become

listed in the future.

In determining whether to enter into a Candidate Conservation

Agreement with assurances, the Services will consider the extent to

which the Agreement reduces threats to proposed and candidate species

and species likely to become candidates or proposed in the near future

so as to preclude or remove any need to list these species as

threatened or endangered under the Act. While the Services realize that

the actions of a single property owner usually will not preclude or

remove any need to list a species, they also realize the collective

effect of the actions of many property owners may be to preclude or

remove any need to list. Accordingly, the Services will enter into an

Agreement with assurances when they determine that the benefits of the

conservation measures implemented by a property owner under a Candidate

Conservation Agreement with assurances, when combined with those

benefits that would be achieved if it is assumed that conservation

measures were also to be implemented on other necessary properties,

would preclude or remove any need to list the covered species.

While some property owners are willing to manage their lands to

benefit proposed and candidate species, or species likely to become

candidates or proposed in the near future, most desire some degree of

regulatory certainty and assurances with regard to possible future

land, water, or resource use restrictions that may be imposed if the

species is listed in the future. The Services will provide regulatory

certainty to a non-Federal property owner who enters into a Candidate

Conservation Agreement with assurances by authorizing, through issuance

of an enhancement of survival permit under section 10(a)(1)(A) of the

Act, a specified level of incidental take of the species covered in the

Agreement. Incidental take authorization benefits non-Federal property

owners in two ways. First, incidental take authorization provides

assurances to property owners that any extra, either intentional or

unintentional, benefits they achieve for the species beyond those

agreed upon will not result in additional land, water, or resource use

restrictions that would otherwise be imposed should the species become

listed in the future. Second, in the event the species is listed in the

future, incidental take authorization enables

[[Page 32734]]

property owners to continue current land uses that have traditionally

caused take, provided take is at or reduced to a level consistent with

the overall goal of precluding or removing any need to list the

species.

Candidate Conservation Agreements with assurances will be developed

in close coordination and cooperation with the appropriate State fish

and wildlife agencies and other affected State agencies and Tribes, as

appropriate. Close coordination with State fish and wildlife agencies

is particularly important given their primary responsibilities and

authorities for the management of unlisted resident species. Agreements

with assurances are to be consistent with applicable State laws and

regulations governing the management of these species.

The Services must determine that the benefits of the conservation

measures implemented by a property owner under a Candidate Conservation

Agreement with assurances, when combined with those benefits that would

be achieved if it assumed that conservation measures were also to be

implemented on other necessary properties, would preclude or remove any

need to list the covered species. Pursuant to section 7 of the Act, the

Services must also ensure that the conservation measures included in

any Agreement with assurances do not jeopardize any listed or proposed

species and do not destroy or adversely modify any proposed or

designated critical habitats that may occur in the area.

Some non-Federal property owners may not have the necessary

resources or expertise to develop Candidate Conservation Agreements

with assurances. Therefore, the Services are committed to providing, to

the maximum extent practicable given available resources, the necessary

technical assistance to develop Agreements with assurances and prepare

enhancement of survival permit applications. Furthermore, the Services

may assist or train property owners to implement conservation measures.

Development of a biologically sound Agreement and enhancement of

survival permit application are intricately linked. The Services will

process the participating non-Federal property owner's enhancement of

survival permit application following the procedures described in 50

CFR Parts 17.22(d)(1) and 17.32(d)(1) or 50 CFR Part 222. All terms and

conditions of the enhancement of survival permit must be consistent

with the conservation measures included in the associated Agreement

with assurances.

Part 2. What Definitions Apply to this Policy?

The following definitions apply for the purposes of this policy.

``Candidate Conservation Agreement'' means an Agreement signed by

either Service, or both Services jointly, and other Federal or State

agencies, local governments, Tribes, businesses, organizations, or non-

Federal citizens, that identifies specific conservation measures that

the participants will voluntarily undertake to conserve the covered

species.

``Candidate Conservation Agreements with assurances'' means a

Candidate Conservation Agreement with a non-Federal property owner that

meets the standards described in this policy and provides the non-

Federal property owner with the assurances described in this policy.

``Candidate Conservation Assurances'' are assurances provided to a

non-Federal property owner in a Candidate Conservation Agreement with

assurances that conservation measures and land, water, or resource use

restrictions in addition to the measures and restrictions described in

the Agreement will not be imposed should the covered species become

listed in the future. Candidate Conservation Assurances will be

authorized by an enhancement of survival permit. Such assurances may

apply to a whole parcel of land, or a portion, as identified in the

Agreement.

``Candidate species'' are defined differently by the Services. FWS

defines candidate species as species for which FWS has sufficient

information on file relative to status and threats to support issuance

of proposed listing rules. NMFS defines candidate species as species

for which NMFS has information indicating that listing may be warranted

but for which sufficient information to support actual proposed listing

rules may be lacking. The term ``candidate species'' used in this

policy refers to those species designated as candidates by either of

the Services.

``Conservation measures'' are actions that a non-Federal property

owner voluntarily agrees to undertake when entering into a Candidate

Conservation Agreement with assurances.

``Covered species'' means those species that are the subject of a

Candidate Conservation Agreement with assurances and associated

enhancement of survival permit. Covered species are limited to species

that are candidates or proposed for listing and species that are likely

to become candidates or proposed in the near future.

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

section 10(a)(1)(A) of the Act that, as related to this policy,

authorizes the permittee to incidentally take species covered in a

Candidate Conservation Agreement with assurances.

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

States, local governments, Tribes, businesses, organizations, and

private individuals, and includes owners of land as well as owners of

water or other natural resources.

``Other necessary properties'' are properties in addition to the

property that is the subject of a Candidate Conservation Agreement with

assurances on which conservation measures would have to be implemented

in order to preclude or remove any need to list the covered species.

``Proposed species'' is a species for which the Services have

published a proposed rule to list as threatened or endangered under

section 4 of the Act.

Part 3. What Are Candidate Conservation Agreements With Assurances?

Candidate Conservation Agreements with assurances will identify or

include:

A. The population levels (if available or determinable) of the

covered species existing at the time the parties negotiate the

Agreement; the existing habitat characteristics that sustain any

current, permanent, or seasonal use by the covered species on lands or

waters owned by the participating non-Federal property owner; and/or

the existing characteristics of the property owner's lands or waters

included in the Agreement that support populations of covered species

on lands or waters not on the participating property owner's property;

B. The conservation measures the participating non-Federal property

owner is willing to undertake to conserve the species included in the

Agreement;

C. The benefits expected to result from the conservation measures

described in B above (e.g., increase in population numbers;

enhancement, restoration, or preservation of habitat; removal of

threat) and the conditions that the participating non-Federal property

owner agrees to maintain. The Services must determine that the benefits

of the conservation measures implemented by a property owner under a

Candidate Conservation Agreement with assurances, when combined with

those benefits that would be achieved if it is assumed that

conservation measures were also to be implemented on other necessary

properties, would

[[Page 32735]]

preclude or remove any need to list the covered species;

D. Assurances provided by the Services that no additional

conservation measures will be required and no additional land, water,

or resource use restrictions will be imposed beyond those described in

B above should the covered species be listed in the future. Assurances

related to take of the covered species will be authorized by the

Services through a section 10(a)(1)(A) enhancement of survival permit

(see Part 5);

E. A monitoring provision that may include measuring and reporting

progress in implementation of the conservation measures described in B

above and changes in habitat conditions and the species' status

resulting from these measures; and,

F. A notification requirement to provide the Services or

appropriate State agencies with a reasonable opportunity to rescue

individuals of the covered species before any authorized incidental

take occurs.

Part 4. What Are the Benefits to the Species?

Before entering into a Candidate Conservation Agreement with

assurances, the Services must make a written finding that the benefits

of the conservation measures implemented by a property owner under a

Candidate Conservation Agreement with assurances, when combined with

those benefits that would be achieved if it is assumed that

conservation measures were also to be implemented on other necessary

properties, would preclude or remove any need to list the covered

species. If the Services and the participating property owner cannot

agree to an adequate set of conservation measures that satisfy this

requirement, the Services will not enter into the Agreement. Expected

benefits of the conservation measures could include, but are not

limited to: restoration, enhancement, or preservation of habitat;

maintenance or increase of population numbers; and reduction or

elimination of incidental take.

Part 5. What Are Assurances to Property Owners?

In a Candidate Conservation Agreement with assurances, the Services

will provide that if any species covered by the Agreement is listed,

and the Agreement has been implemented in good faith by the

participating non-Federal property owner, the Services will not require

additional conservation measures nor impose additional land, water, or

resource use restrictions beyond those the property owner voluntarily

committed to under the terms of the original Agreement. Assurances

involving incidental take will be authorized through issuance of a

section 10(a)(1)(A) enhancement of survival permit, which will allow

the property owner to take individuals of the covered species so long

as the level of take is consistent with those levels agreed upon and

identified in the Agreement.

The Services will issue an enhancement of survival permit at the

time of entering into the Agreement with assurances. This permit will

have a delayed effective date tied to the date of any future listing of

the covered species. The Services believe that an enhancement of

survival permit is particularly well suited for Candidate Conservation

Agreements with assurances because the main purpose of such Agreements

is to enhance the survival of declining species.

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

implementing a Candidate Conservation Agreement with assurances where

continuation of the permitted activity would be likely to result in

jeopardy to a species covered by the permit. Prior to taking such a

step, however, the Services would first have to exercise all possible

means to remedy such a situation.

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

Act?

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

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

require all Federal agencies to examine the environmental impact of

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

public participation in the planning and implementation of their

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

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

an understanding of environmental consequences. Federal agencies can

satisfy NEPA requirements either by preparing an Environmental

Assessment (EA) or Environmental Impact Statement (EIS) or by showing

that the proposed action is categorically excluded from individual NEPA

analysis.

The Services will review each Candidate Conservation Agreement with

assurances and associated enhancement of survival permit application

for other significant environmental, economic, social, historical or

cultural impact, or for significant controversy (516 DM 2, Appendix 2

for FWS and NOAA's Environmental Review Procedures and NOAA

Administrative Order Series 216-6). If the Services determine that the

Agreement and permit will likely result in any of the above effects,

preparation of an EA or EIS will be required. General guidance on when

the Services exclude an action categorically and when and how to

prepare an EA or EIS is found in the FWS's Administrative Manual (30 AM

3) and NOAA Administrative Order Series 216-6.

The Services expect that most Candidate Conservation Agreements

with assurances and associated enhancement of survival permits will

result in minor or negligible effects on the environment and will be

categorically excluded from individual NEPA analysis. When the impacts

to the environment are expected to be more than minor, individual NEPA

analysis will be required. Complex, large-scale, or programmatic

Agreements and their associated permits will typically be subject to

individual NEPA analysis.

Part 7. Will There Be Public Review?

Public participation in the development of a proposed Candidate

Conservation Agreement with assurances will only be provided when

agreed to by the participating property owner. However, the Services

will make every proposed Agreement available for public review and

comment as part of the public evaluation process that is statutorily

required for issuance of the enhancement of survival permit associated

with the Agreement. This comment period will generally be 30 days but

may be longer for very large or programmatic Agreements. The public

will also be given other opportunities to review Agreements in certain

cases. For example, when the Services receive an Agreement covering a

proposed species, and when the Services determine, based upon a

preliminary evaluation, that the Agreement could potentially justify

withdrawal of the proposed rule, the comment period for the proposed

rule will be extended or reopened to allow for public comments on the

Agreement's adequacy in removing or reducing threats to the species.

However, the Act requires the Services to issue a final determination

within 1 year of issuing a proposed rule to list; the Services will not

extend this time frame in order to allow for the completion and/or

consideration of an Agreement with assurances. Therefore, the Services

may not be able to consider in their final determination Agreements

that are not received within a reasonable period of time after issuance

of the proposed rule.

[[Page 32736]]

Part 8. Do Property Owners Retain Their Discretion?

Nothing in this policy prevents a participating property owner from

implementing conservation measures not described in the Agreement,

provided such measures are consistent with the conservation measures

and conservation goal described in the Agreement. The Services will

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

property owner when requested. Additionally, a participating property

owner, with good cause, can terminate the Agreement prior to its

expiration date, even if the terms and conditions of the Agreement have

not been realized. However, the enhancement of survival permit would

also be terminated at the same time.

Part 9. What Is the Discretion of All Parties?

Nothing in this policy compels any party to enter a Candidate

Conservation Agreement with assurances at any time. Entering an

Agreement is voluntary for non-Federal property owners and the

Services. Unless specifically noted, an Agreement does not otherwise

create or waive any legal rights of any party to the Agreement.

Part 10. Can Agreements Be Transferred?

If a property owner who is a party to a Candidate Conservation

Agreement with assurances transfers ownership of the enrolled property,

the Services will regard the new property owner as having the same

rights and obligations as the original property owner if the new

property owner agrees to become a party to the original Agreement.

Actions taken by the new participating property owner that result in

the incidental take of species covered by the Agreement would be

authorized if the new property owner maintains the terms and conditions

of the original Agreement. If the new property owner does not become a

party to the Agreement, the new owner would neither incur

responsibilities under the Agreement nor receive any assurances

relative to section 9 restrictions resulting from listing of the

covered species.

An Agreement must commit the participating property owner to notify

the Services of any transfer of ownership at the time of the transfer

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

the opportunity to contact the new property owner to explain the prior

Agreement and to determine whether the new property owner would like to

continue the original Agreement or enter a new Agreement. When a new

property owner continues an existing Agreement, the Services will honor

the terms and conditions of the original Agreement.

Part 11. Is Monitoring Required?

The Services will ensure that necessary monitoring provisions are

included in Candidate Conservation Agreements with assurances and

associated enhancement of survival permits. Monitoring is necessary to

ensure that the conservation measures specified in an Agreement and

permit are being implemented and to learn about the effectiveness of

the agreed upon conservation measures. In particular, when adaptive

management principles are included in an Agreement, monitoring is

especially helpful for obtaining the information needed to measure the

effectiveness of the conservation program and detect changes in

conditions. However, the level of effort and expense required for

monitoring can vary substantially among Agreements depending on the

circumstances. For many Agreements, monitoring can be conducted by the

Services or a State agency and may involve only a brief site inspection

and appropriate documentation.

Large-scale or complex Candidate Conservation Agreements with

assurances may require more in-depth and comprehensive monitoring.

Monitoring programs must be agreed upon and included in the Agreement

prior to public review and comment on the Agreement. The Services are

committed to providing as much technical assistance as possible in the

development of acceptable monitoring programs. Additionally, these

monitoring programs will provide valuable information that the Services

can use to evaluate program implementation and success.

Part 12. How Are Cooperation and Coordination With the States and

Tribes Described in the Policy?

Coordination between the Services, the appropriate State fish and

wildlife agencies, affected Tribal governments, and property owners is

important to the successful development and implementation of Candidate

Conservation Agreements. The Services will closely coordinate and

consult with the affected State fish and wildlife agency and any

affected Tribal government that has a treaty right to any fish or

wildlife resources covered by an Agreement.

Dated: March 22, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

Dated: June 10, 1999.

Penelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 99-15257 Filed 6-11-99; 5:08 pm]

BILLING CODE 4310-55-P