SUPPLEMENTARY INFORMATION:

Background

The purposes of the Endangered Species Act of 1973, as amended (hereafter referred to as ESA; 16 U.S.C. 1531 et seq.), are to provide a means to conserve the ecosystems upon which endangered and threatened species depend (listed species), to develop a program for the conservation of listed species, and to achieve the purposes of certain treaties and conventions. Moreover, the ESA states that it is the policy of Congress that the Federal government will seek to conserve endangered and threatened species and use its authorities to further the statutory purposes (16 U.S.C. 1531(c)(1)). The ESA's implementing regulations are in title 50 of the Code of Federal Regulations (CFR).

Section 10(a)(1)(A) of the ESA authorizes the issuance of permits, under certain terms and conditions, for any act otherwise prohibited by section 9 for scientific purposes or to enhance the propagation or survival of the affected species. In 1999, we promulgated regulations (at 50 CFR 17.22(c) and (d) and 50 CFR 17.32(c) and (d)) and finalized policies regarding safe harbor agreements and candidate conservation agreements with assurances to incentivize the use of enhancement of survival permits to further species recovery and conservation (64 FR 32706, 32717, and 32726; June 17, 1999). We updated our implementing regulations for section 10(a) on April 12, 2024 (89 FR 26070; 2024 rule) to simplify the requirements for enhancement of survival permits by combining safe harbor agreements and candidate conservation agreements with assurances into one agreement type called a conservation benefit agreement. The 2024 rule also clarified which statutory provision the U.S. Fish and Wildlife Service (Service) authorizes the proposed take, either through an enhancement of survival permit (section 10(a)(1)(A)) or an incidental take permit (section 10(a)(1)(B)). Additional regulatory changes were made to reduce costs and times associated with negotiating and developing the required documents to support applications.

The purpose of Section 10(a)(1)(A) conservation benefit agreements is to incentivize voluntary conservation of listed and at-risk species on non-Federal lands. The enhancement of survival permits associated with conservation benefit agreements are intended to incentivize voluntary conservation by authorizing the take of covered species that may result from implementing the approved conservation benefit agreement. These permits also provide assurances that the Service will not in the future require an increased commitment or impose additional restrictions on the permittee's current management and use of land, water, or financial resources. As a result, a property owner may continue ongoing activities and implement beneficial conservation measures without concern that their activities may be curtailed by increasing populations or distribution of a listed species or a species that may become listed in the future. Therefore, property owners managing or improving habitat that could be used by a species that is listed or could be listed in the future, or establishing new populations of such species, have an incentive to continue their activities without fear of being subjected to increased regulatory burdens in the future. In general, take associated with working lands ( e.g., agriculture and silviculture) that are managed in a sustainable fashion to improve conditions for listed and at-risk species, may be appropriate under this authority depending upon the proposed covered activities.

The purpose of Section 10(a)(1)(B) is to provide a means for non-federal entities to ensure ESA compliance when otherwise lawful activities may result in incidental take of listed species or a species that may become listed in the future. Section 10(a)(1)(B) of the ESA authorizes the issuance of permits, under certain terms and conditions, to authorize take that would be otherwise prohibited by section 9, provided the taking is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Under section 10(a)(1)(B), the impacts of the take associated with the otherwise lawful activities must be minimized and mitigated to the maximum extent practicable, i.e., the nature of the associated habitat conservation plan is a mitigation plan to minimize and offset the adverse impacts to the species that are incidental to otherwise lawful activities. Ultimately, issuance of an incidental take permit under section 10(a)(1)(B) is beneficial because they strike a balance for non-Federal entities to continue projects of their choosing on their lands while also providing for species protection.

Information and Comments Requested

The Service invites information and comments from anyone who would like to submit information and/or suggestions for improving the efficiency and effectiveness of conservation benefit agreements, habitat conservation plans, and their respective enhancement of survival permits and incidental take permits. We invite all private and public stakeholders, Tribes or Tribal governments, as well as the general public to comment or provide any information that they believe should be taken into consideration. We particularly seek comments concerning:

(1) Barriers that prevent applicants from pursuing development of conservation benefit agreements and habitat conservation plans;

(2) Methods to streamline conservation benefit agreement and habitat conservation plan development and their associated permit issuance;

(3) Strategies to enhance Service communications on conservation benefit agreements, habitat conservation plans, and their associated permits;

(4) Whether any clarification is needed on the roles and responsibilities of the Service and applicants during conservation benefit agreement and habitat conservation plan development and permit issuance;

(5) Funding and resources necessary to develop and implement conservation benefit agreements and habitat conservation plans;

(6) Strategies the Service could pilot to improve the overall effectiveness of the section 10(a) program.

90 FR 24285